{"id":66014,"date":"2002-08-01T00:00:00","date_gmt":"2002-07-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-luizinho-joaquim-faleiro-vs-the-state-of-goa-through-its-chief-on-1-august-2002"},"modified":"2017-03-21T05:11:20","modified_gmt":"2017-03-20T23:41:20","slug":"shri-luizinho-joaquim-faleiro-vs-the-state-of-goa-through-its-chief-on-1-august-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-luizinho-joaquim-faleiro-vs-the-state-of-goa-through-its-chief-on-1-august-2002","title":{"rendered":"Shri Luizinho Joaquim Faleiro vs The State Of Goa, Through Its Chief … on 1 August, 2002"},"content":{"rendered":"
Bombay High Court<\/div>\n
Shri Luizinho Joaquim Faleiro vs The State Of Goa, Through Its Chief … on 1 August, 2002<\/div>\n
Equivalent citations: 2003 (2) MhLj 334<\/div>\n
Author: V Daga<\/div>\n
Bench: V Daga<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
V.C. Daga, J.<\/p>\n
 1. These  two Writ Petitions under Article 226 of the
\nConstitution  of India have been referred to me in view of
\nthe  split  judgment by the two learned Judges of the  Goa
\nBench  of  this Court.  While Justice A.S.  Aguiar was  of
\nthe view that these petitions ought to be allowed and Rule
\ngranted  therein be made absolute, another learned  Judge,
\nJustice   P.V.   Hardas,  took  a  view  that  these  Writ
\nPetitions  ought to be dismissed and Rule granted  therein
\nbe  discharged.   The  Division Bench  did  not  formulate
\npoints  of difference and ordered that these petitions  be
\nplaced before the Honble Chief Justice for being referred
\nto  a third Judge.  The learned Chief Justice was  pleased
\nto  refer these petitions for my opinion as a third  Judge
\nunder Clause 36 of the Letters  Patent.  That is how these
\npetitions were placed before me for hearing and opinion.
\nOn maintainability of reference to a third Judge:\n<\/p>\n
 2.   At  the first instance, when these  petitions
\nwere  placed  on board for directions Shri  S.G.   Dessai,
\nlearned  Senior  Counsel, at the relevant time,  appearing
\nfor the petitioners in Writ Petition No.88\/2002 has raised
\nan  objection to this reference being violative of Section
\n98(2)  of  Civil  Procedure   Code  (C.P.C.   for  short).
\nAccording  to him, no point of law arose for consideration
\nor  at  any rate, no point of law was framed or stated  by
\nthe  learned Judges of the Division Bench which  expressed
\ndifference of opinions, inasmuch as the matter is referred
\nto  a  third  Judge  without following  the  procedure  of
\nSection 98(2) C.P.C.;  the reference to a third Judge is a
\nnullity.\n<\/p>\n
 3.  The learned Advocate General appearing for the
\nState  of  Goa  pointed  out that  Section  98(2)  has  no
\napplication  to  the  facts of these cases  and  that  the
\ncontention  has no merit whatsoever and that the provision
\nof  Section  98(3)  has obviously been overlooked  by  the
\nlearned   counsel  for  the   Petitioners.   As  per  that
\nsub-section nothing in Section 98 shall be deemed to alter
\nor otherwise affect any provision of the Letters Patent of
\nany  High Court.  Admittedly, this High Court has  Letters
\nPatent.   The  learned Advocate General pointed  out  that
\nClause 36 of the Letters Patent provides that in the event
\nof  difference  of  opinion between two Judges as  to  the
\ndecision  on any point, the case shall be heard upon  that
\npoint by one or more of the other Judges and the case must
\nbe decided on the majority of the opinion.  He relied upon
\nthe  judgment  of  the Apex Court in the  case  of  S.P.G.
\nCommittee  v.  M.P.  Dass Chela,<\/a> ,
\nwherein  the  judgment  of the High Court  of  Punjab  and
\nHaryana  in  Mahant  Swaran Dass v.   Shiromani  Gurudwara
\nParbandhak  Committee,  Amritsar,<\/a>  with other rulings taking the same view that
\nthe provisions of Section 98(2) C.P.C.  are not applicable
\nto  High  Courts which are governed by Letters Patent  and
\nthe  matter  can  be  referred  to  a  third  Judge  on  a
\ndifference of opinion between the two Judges even on point
\nof facts.\n<\/p>\n
 4.   In the above view of the matter, it is  clear
\nthat  the  reference  does not suffer from  any  legal  or
\nfactual  infirmity.  All the questions and issues based on
\nfacts  and law involved in the petitions are open for  the
\nopinion  of  the  third  Judge.  In  this  backdrop,  both
\npetitions were heard on merits to render my opinion on the
\nquestions of fact and law both.\n<\/p>\n
 OUTLINE CHRONOLOGY.\n<\/p>\n
 5.  Goa which was liberated on 19th December, 1961
\nalong  with  Daman  and Diu from 451 years  of  Portuguese
\nColonial  Rule, became the 25th State of Indian Union when
\nit was conferred Statehood on 30th May, 1987.\n<\/p>\n
 6.   The  State of Goa has a Legislative  Assembly
\nwith  a  strength of 40 elected members.  The Governor  is
\nthe  Head  of  State  and is advised  by  the  Council  of
\nMinisters headed by the Chief Minister.\n<\/p>\n
 7.   Goa, a tiny emerald land on the west coast of
\nIndia,  with its natural scenic beauty, abundant greenery,
\nattractive   beaches  and  temples   and   churches   with
\ndistinctive   style  of  architecture   and   above   all,
\nhospitable  people with a rich culture milieu, has  always
\nbeen  suffering from bad political weather.  In the recent
\npast,  the  evil  of  political   defections  has  been  a
\npolitical phenomenon in Goa.  The other disturbing picture
\nof  this  phenomenon  emerging  on  the  screen  of  these
\npetitions  is  multiple  acts of defections  by  the  same
\npersons  or  set of persons;  indifference on the part  of
\nthe  defectors  to   political  proprieties,  constituency
\npreference  or  public opinion and the belief held by  the
\npeople  and  expressed  in the press that  corruption  and
\nbribery  were  behind  some  of  these  defections.    The
\nfrequent  crossing  of the floor and  changing  allegiance
\nfrom  one party to another by the legislators of the State
\nappears  to have damaged the political fabric of the State
\nof Goa.\n<\/p>\n
 8.   In  order to appreciate the  controversy,  it
\nwould  be necessary to state brief matrix of facts leading
\nto  the  present  petitions.  Though the  petitioners  are
\ndifferent  but legal and factual challenges are identical.
\nHence  no separate outline chronology giving rise to these
\ntwo separate petitions is necessary.\n<\/p>\n
 9.   The  petitioners were the members of the  Goa
\nState  Legislative Assembly which came to be dissolved  by
\nthe  impugned  Order  dated   27th  February,  2002.   The
\npetitioner  in Writ Petition No.84\/2002 was the Leader  of
\nthe   Opposition  in the House and was the Chief  Minister
\nfor  some time till 24th November, 1999.  He was  required
\nto resign due to reduction in strength of his party Indian
\nNational  Congress, on account of defection of 11  members
\nof his party.\n<\/p>\n
 10.   The challenge in the above two petitions  is
\nto two Orders, both dated 27th February, 2002 bearing Nos.
\nG\/2\/2002\/2881 and G\/2\/2002\/2882 respectively;  whereby the
\nGovernor  of Goa dissolved the State Legislative  Assembly
\nwith  immediate  effect  and   under  second  Notification
\nordered  the  Council  of Ministers headed  by  the  Chief
\nMinister  of  Goa to continue to carry on functions  as  a
\nCouncil  of  Ministers  until its successor  takes  office
\nunder  the  Constitution.   The  Notification  dated  27th
\nFebruary,  2002 dissolving the Legislative Assembly  reads
\nhereunder :-\n<\/p>\n
 ” RAJ BHAVAN  <\/p>\n
ORDER<\/p>\n
 No. G\/2\/2002\/2881  <\/p>\n
 In  exercise  of   the   powers
\nconferred   upon  me   under   Article
\n174(2)(b)  of  the   Constitution   of
\nIndia,  and all other powers  enabling
\nme  in  that behalf, I, Mohd.   Fazal,
\nGovernor  of Goa, on the advice of the
\nCouncil  of Ministers, hereby dissolve
\nthe  Legislative Assembly of Goa, with
\nimmediate effect.\n<\/p>\n
 Dona Paula.\n<\/p>\n
 Dated:27th February, 2002.(MOHD.FAZAL) <\/p>\n
Governor of Goa <\/p>\n
RAJ BHAVAN ”\n<\/p>\n
 11.  The petitioners challenge the aforesaid Order
\nof  the Governor dissolving the State Legislative Assembly
\nunder Article 174(2)(b) of the Constitution of India being
\nunconstitutional,  void and inter alia on the ground  that
\nthe  Chief Minister in order to avoid to face the vote  of
\nno-confidence  which was imminent;  opted for  dissolution
\nof  the House on the aid and advice of the Chief  Minister
\nand  his  Council of Ministers;  which was not  likely  to
\ncontinue  for want of majority.  The said action in  their
\nopinion  is  contrary  to   the  well  settled  principles
\ngoverning dissolution of Legislative Assembly.\n<\/p>\n
 12.  It is alleged that on 13th February, 2002 the
\nHouse  was  summoned by the Governor for 13th March,  2002
\nfor  passing  the  Budget.  The  dissolution  was  ordered
\nwithin  less  than  two weeks prior to the  said  meeting,
\nwithout  taking into consideration the fact that the State
\nwould  be  thrown into a state of financial crisis if  the
\nBudget was not passed.  The Governor did not even consider
\nthe  consequences of his dissolving the House prematurely.
\nThe  act  of  dissolution was a mindless act  without  any
\nconcern  for public welfare and meant only for  satisfying
\nobjectives of the party in power in the State.\n<\/p>\n
 13.   It is further alleged that subsequent to the
\nNotification  dated  13th  February,  2002  convening  the
\nmeeting  of  the  Legislative Assembly for  approving  the
\nBudget  on  13th  March,  2002, there  was  no  change  of
\ncircumstances  in  the  following   two  weeks   preceding
\ndecision  to dissolve the Assembly on 27th February, 2002,
\nwarranting  dissolution of the House.  The Chief  Minister
\nbeing  aware  of  the imminent loss of confidence  in  the
\nHouse,  resorted to subterfuge and persuaded the  Governor
\nto  dissolve  the House, on the alleged aid and advice  of
\nthe  Chief Minister alleged to be supported by the Council
\nof  Ministers.  The dissolution of the House on the advice
\nof  the  Chief  Minister,  who   did  not  command  stable
\nmajority,  was  an  abuse  of power on  the  part  of  the
\nGovernor.\n<\/p>\n
 14.  It is further alleged that the Chief Minister
\nreported  at  a  Cabinet meeting on 27th  February,  2002,
\nscheduled  at 10.30 a.m.  discussed the issue of the State
\nAssembly,  despite the fact that the issue was not on  the
\nAgenda  circulated  to the Ministers and despite the  fact
\nthat  the  Cabinet had not agreed to the dissolution,  the
\nChief  Minister  proceeded to meet the Governor  at  11.15
\na.m.   on  the  same day and advised  dissolution  of  the
\nLegislative  Assembly.  The Chief Minister produced before
\nthe  Governor  the Cabinet advice for  dissolution  signed
\nonly by himself.  The advice of the Chief Minister was not
\nof the Council of Ministers but it was a decision taken by
\nthe  Chief Minister unilaterally with mala fide intent  of
\navoiding  imminent fall of the Government which was  clear
\nfrom  the  newspaper  articles   appearing  in  the  daily
\nnewspapers.  The Governor has acted in undue haste without
\neven seeking any information from the Council of Ministers
\nor  from the Leader of the Opposition.  The Governor ought
\nnot  to have agreed to the dissolution of the  Legislative
\nAssembly,  since  there were more than two years left  for
\nthe expiry of the term of the House.\n<\/p>\n
 15.   It  is further alleged that the  mala  fides
\ninherent in the advice of the Chief Minister percolated in
\nthe  decision  making process of the Governor as such  the
\nsaid  decision  stood  vitiated,  and  that  the  Governor
\nfaulted  in the discharge of his constitutional duty.  The
\nfailure  on  the  part  of the  Governor  to  explore  the
\ncontinuation of the Assembly for full term is a failure on
\nthe  part of the Governor in protecting and upholding  the
\nConstitution.\n<\/p>\n
 16.   On  the  aforesaid   canvas  of  facts,  the
\npetitioners  are  seeking  a  declaration  that  both  the
\nimpugned  orders  of  the  Governor   of  Goa  dated  27th
\nFebruary,  2002 be declared as unconstitutional, null  and
\nvoid and be set aside.\n<\/p>\n
 Subsequent events:\n<\/p>\n
 17.   The  respondent No.1 filed  affidavit  dated
\n10.7.02  affirmed by the Chief Secretary to the Government
\nof  Goa  bringing on record subsequent events  which  have
\noccurred during the pendency of these petitions.  The said
\naffidavit  revealed  that  on 11.5.02 a  Notification  was
\nissued  by the Election Commission of India, declaring the
\ngeneral elections to the Legislative Assembly of the State
\nof  Goa  to be held on 30th May, 2002 in pursuance of  the
\nelection  programme,  notified  by   the  Chief   Election
\nCommissioner  of  Goa.  Accordingly on 30th May, 2002  the
\nelections  to  the Assembly of the State of Goa were  held
\nand  new Assembly was constituted under Notification dated
\n2.6.2002  a  copy of which is produced on  record  showing
\ndetails  of 40 returned candidates of the Assembly of  the
\nState  of  Goa in which the names of the petitioners  also
\nfigure.   The  text  of  the  Notification  is  reproduced
\nhereinbelow:-\n<\/p>\n
 “EXTRAORDINARY
\nGOVERNMENT OF GOA
\nDEPARTMENT OF ELECTIONS  <\/p>\n
 Office of the Chief Electoral
\nOfficer  <\/p>\n
 Notification  <\/p>\n
 No.308\/GOA-LA\/2002:- Whereas,
\nin    pursuance    of    Notification
\nNo.58-2002\/ELEC,   issued    by   the
\nGovernor  of  Goa on 6th  May,  2002,
\nunder  sub-section (2) of Section  15
\nof  the Representation of the  People
\nAct,  1951  (43 of 1951),  a  General
\nElection   has  been   held  for  the
\npurpose   of  constituting    a   new
\nLegislative Assembly for the State of
\nGoa;  and
\nWhereas,  the results of  the
\nelections   in  all    the   Assembly
\nConstituencies  in  the said  General
\nElection  have  been declared by  the
\nReturning Officers concerned;<\/p>\n
Now,  therefore, in pursuance
\nof  Section 73 of the  Representation
\nof the People Act, 1951 (43 of 1951),
\nthe   Election    Commission   hereby
\nnotifies  the  names of  the  members
\nelected  for   those  constituencies,
\nalong  with their party  affiliation,
\nif  any, in the SCHEDULE enclosed  to
\nthis notification.\n<\/p>\n
 By Order,  <\/p>\n
 C.R. BRAHMAN, <\/p>\n
Secretary to the <\/p>\n
Election Commission of India.\n<\/p>\n
 SCHEDULE  <\/p>\n
 No. and Name of       Name of  Party
\nAssembly Constituency Elected  Affi-<\/p>\n
\nMember  liation\n(if\nany) \n \n\n 2. Pernem       Deshprabhu   Indian\nJitendra     National\nRaghuraj     Congress  \n \n\n 13. St. Andre    Silveira     Indian\nFrancis      National\nManuel       Congress  \n \n\n 32. Navelim      Faleiro      Indian\nLuizinho     National\nCongress  \n \n\n By Order, \n \n\n C.R. BRAHMAM, \n \n\n Secretary to the   \n \n\n Election Commission of India\"  \n \n\n<\/pre>\n
 18.   It  is  further  brought on  record  that  on
\n3.6.2002  Respondent No.3 was sworn in as Chief Minister of
\nGoa along with the other 12 Cabinet Ministers and the first
\nsession  of  the Assembly was held on 13.06.2002.   In  the
\nsaid  session business including presentation of the  State
\nbudget  was  done  on 15.6.2002, Vote on Account  Bill  was
\npassed  which  was  assented by the Government.   The  next
\nsession  of  the Assembly was being summoned to be held  on
\n22nd  July, 2002.  The said affidavit was taken on  record.
\nThe  petitioners did not file any counter affidavits.   The
\nfacts  brought  on record by way of subsequent  events  are
\nthus not in dispute.\n<\/p>\n
 Rival submissions:\n<\/p>\n
 19.  S\/Shri S.K.  Kakodkar, V.B.  Nadkarni, learned
\nSenior  Counsel  addressed  this Court in  support  of  the
\npetitioners.   Learned  Additional   Solicitor  General  of
\nIndia, Shri R.N.  Trivedi, learned Advocate General of Goa,
\nShri A.N.S.  Nadkarni, Shri M.S.  Usgaonkar, Senior Counsel
\nappearing  for  the respondent No.3 sought to  support  the
\nimpugned action of the Governor.\n<\/p>\n
 Submission of Petitioners:\n<\/p>\n
 20.   The  petitioners  contend that  the  impugned
\norder  of the Governor dissolving the Legislative  Assembly
\non  the aid and advice of the Council of Ministers does not
\nstate  that it has been made in the exercise of  discretion
\nof  the  Governor  as is purported to be made  out  in  the
\naffidavit  of  the  respondents.  The  petitioners  further
\nsubmit  that  the affidavit of the Chief Secretary  stating
\nthat  the  Order is made in exercise of discretion  of  the
\nGovernor  is  contrary  to the Governors own  Order.   The
\nChief Secretary cannot be permitted to make a statement and
\ncontradict  the order of the Governor.  Reliance is  placed
\non Mohinder Gill v.  Election Commission (1978) 1 SCC 407.\n<\/p>\n
 21.   It  is further contended that in view of  the
\nJudgment of the Apex Court in the case of Shamsher Singh v.
\nState  of  Punjab,  ,  the
\norder  for  dissolution  has to be passed on  the  aid  and
\nadvice  of the Council of Ministers.  That is why according
\nto  the  petitioners in the present case the  order  speaks
\nthat  the said order has been made under Article  174(2)(b)
\n“on  the aid and advice of the Council of Ministers”.\n<\/p>\n
 22.   The  learned  counsel   for  the  petitioners
\nrelying upon Constituent Assembly Debates;  Official Report
\nand  report of Sarkaria  Commission   contended  that   the
\nConstitution  had  contemplated  that  in  the  matter   of
\ndissolution,  the Governor would be required to act in  his
\ndiscretion  but this provision was subsequently deleted  on
\nthe  ground  that  the  Governor need  not  discharge  this
\nfunction  as per his discretion and would fully be  advised
\nin  all  these  matters  by   the  Council  of   Ministers.
\nAttention  was invited to the Constituent Assembly  Debates
\nOfficial  Report,  Vol.VIII, Page 41, Vol.III and  Sarkaria
\nCommission Report, Para 4.11.16.\n<\/p>\n
 23.   Based  on above foundation,  the  Petitioners
\npressed  into  service  a Division Bench Judgment  of  this
\nCourt  in the case of Pratapsingh Rane v.  Governor of Goa,
\n and relied upon para 29 of the said
\njudgment, relevant portion thereof reads as under :-\n<\/p>\n
 ”   (i)   The    exercise   of
\nexecutive power in accordance with the
\nprovisions  of the Constitution by  or
\nunder   the  Order  of  the   Governor
\nwherein   full  judicial   review   is
\navailable.\n<\/p>\n
 (ii)  Orders  passed   by  the
\nGovernor  on  aid  and advice  of  the
\nCouncil  of Ministers headed by  Chief
\nMinister  wherein full judicial review
\nis available.\n<\/p>\n
 (iii)  Orders  like  grant  of
\npardon  under  Article   161  and  the
\nOrders  passed by the President on the
\nreport submitted by the Governor under
\nArticle   356  on   account  of  which
\nlimited  judicial review is  available
\nand  <\/p>\n
 (iv)   Where   Governor   acts
\nwithout  aid and advice of the Council
\nof  Ministers headed by Chief Minister
\nand acts in his own discretion.  ”\n<\/p>\n
 24.   In  the  present   case,  according  to  the
\npetitioners,  the Governor has acted on the aid and advice
\nof  the Council of Ministers and therefore this case would
\nbe  well  within the sweep of category (ii)  mentioned  in
\npara  27 Supra wherein full judicial review is  available.
\nIn  other  words, in this case since the Governor has  not
\nacted in his sole discretion but based his judgment on the
\naid  and advice of the Council of Ministers, his action is
\nnot immune from challenge in the Court.\n<\/p>\n
 25.   The petitioners further contend that in view
\nof  the  judgment  of the Apex Court in the case  of  B.R.
\nKapur  v.   State  of Tamil Nadu,   the
\ncurrent  view of the law is that if any action is taken by
\nthe  Governor  even  in the matter of appointment  of  the
\nChief Minister, and if the action of the Governor is found
\nto  be  contrary to the Constitution, the Court will  have
\nthe  power  to  strike it down.  In their  submission  the
\naction of the highest authority including the President of
\nIndia;   who  is  advised by his Council of  Ministers  is
\namenable to judicial review as was ruled by the Apex Court
\nin  the  case of Kehar Singh v. Union of India, 1981 1  SCC\n<\/p>\n
204. <\/p>\n
 26.   The  petitioners,  on  the  aforesaid  legal
\nfoundation  looking  to  the facts of the  case  on  hand,
\ncontend  that  on 27.3.2002 the Cabinet met at 10.30  a.m.
\nand  decided  to recommend to the Governor to  immediately
\ndissolve  the  State Legislative Assembly.  In absence  of
\nany  explanation  for  such immediate dissolution,  it  is
\nlogical  to  infer  that it was required  to  be  effected
\nimmediately  to prevent the diminution in the strength  of
\nthe party in power.\n<\/p>\n
 27.   The  petitioners further contend that  under
\nArticles  202  and  204  of the  Constitution  the  Annual
\nFinancial  Statement  is  required to be laid  before  the
\nAssembly  in  respect of the financial year and a bill  to
\nprovide  for  appropriation is required to be  introduced.
\nRather  than taking steps for passing the budget or a Vote
\non  Account,  the  Assembly was dissolved  with  immediate
\neffect.   Any chance of voting in the Assembly was  sought
\nto  be  avoided  due to apprehension that  the  Government
\nwould not be able to pass the resolution in which event it
\nwould amount to a vote of no confidence in the Government.
\nBased  on  these factors, the contention advanced is  that
\nthe  only  hidden  reason for seeking dissolution  of  the
\nAssembly was to avoid a test on the floor of the Assembly.
\nThe  contention therefore, is that the dissolution ordered
\non  27.2.2002 was nothing but a blatant abuse of the power
\nof   the   Governor  under   Article  174(2)(b)   of   the
\nConstitution.\n<\/p>\n
 28.   The  petitioners, further contend  that  the
\nreasons sought to be given or the explanation sought to be
\noffered  in  the affidavit of the respondents is  patently
\nfalse because, according to the Chief Minister (Respondent
\nNo.3)  Government had the strongest majority of over 2\/3rd
\nof  the  Legislative  Assembly;    which  could  pass  any
\nlegislation   or   policy  it   desired.   No  change   of
\ncircumstances  were  pleaded  or  brought  on  record  for
\nseeking  a  fresh mandate.  Therefore, in absence  of  any
\nlegitimate  reason  it  is logical to conclude  that  this
\nimmediate  dissolution  was  intended to prevent  loss  of
\npolitical  support in the Assembly.  In his submission the
\npower to dissolve the Legislative Assembly has been abused
\nfor  the purpose not authorised by law, only to avoid loss
\nof  strength in the Legislative Assembly and an attempt to
\nsurvive  by  dissolution  and  to remain  in  power  as  a
\nCaretaker  Government  and to take another chance  at  the
\npolls whilst remaining in power as the Government.\n<\/p>\n
 29.   The petitioners further went on to urge that
\nall  powers  vested  in   the  Constitution  or  statutory
\nauthority can be exercised for legitimate purpose.  If the
\npower  is  misused for an illegitimate purpose, the  Court
\nshould  not  hesitate  to  strike down  such  an  exercise
\ntreating  it  as  a  fraud   on  the  Constitution.    The
\npetitioners  further  contend  that the  plea  of  popular
\nmandate  put  forth in the aid and advice to dissolve  the
\nAssembly is self contradictory if examined on the basis of
\nthe  claim of the respondent No.3 that he had majority  of
\n2\/3rds  in  the  Assembly.  It is further  submitted  that
\npolitical  expediency  cannot be pressed into  service  to
\ncover  illegal  action.  The Court is not  precluded  from
\nexamining the question of exercise of power merely because
\nit  has political overtones.  He relied upon the  judgment
\nof  the  Apex Court in the case of State of  Rajasthan  v.
\nUnion of India, .\n<\/p>\n
 30.   The petitioners further contend that it  was
\nincumbent  upon the respondents to placed before the  Court
\nmaterial  on which the advice was tendered to the Governor
\nfor  dissolution.  If any action taken by the Governor  in
\nexercise  of his function is questioned in a Court of law,
\nit  is  for the Council of Ministers to justify  the  same
\nincluding  their  decision.   In such a case there  is  no
\nquestion  of not disclosing any material possessed by  the
\nCouncil  of Ministers alleged to be shown to the  Governor
\nwhich  is required to be inquired into by the Court  under
\nArticle  163(3)  of the Constitution as held by  the  Apex
\nCourt  in  the  case of S.R.  Bommai v.  Union  of  India,<\/a>
\n.\n<\/p>\n
 31.   It is further contended that the  Government
\ncannot  claim  shelter  for disclosure on  the  ground  of
\nprivilege  so as not to disclose Cabinet decision;  as  is
\nattempted  to  be  done  in the  affidavit  of  the  Chief
\nSecretary,  of  the  State.  There could be no  injury  to
\npublic  interest if the Cabinet decision is disclosed.  In
\nthe  present case in the interest of justice all  material
\nincluding  Cabinet decisions ought to have been  disclosed
\nor  at  any  rate the Court has the power to  inspect  the
\nrelevant  documents including class of documents or  other
\nmaterial and in absence of disclosure of any such material
\nit  would  be  logical on the part of the Court  to  infer
\nlegal  mala fides;  since the power has been exercised  by
\nthe Governor for the purpose not authorised by law.\n<\/p>\n
 32.    It  is  further   contended  that   Article
\n174(2)(b) of the Constitution postulates that the Governor
\nmay,  from time to time dissolve the Legislative Assembly.
\nAlthough  there  are  no express words  of  limitation  in
\nArticle 174(2)(b), still the Governors power will have to
\nbe read subject to limitation implied in the Scheme of the
\nConstitution keeping in mind that rule of law, responsible
\nand  representative parliamentary democracy are  essential
\nfeatures of the Constitution.  Limitations on the power of
\nthe Governor can further be spelt out from the preamble to
\nthe  Constitution to constitute a democratic republic  and
\nthe  oath to be taken by the Governor to preserve, protect
\nand  defend the Constitution and the law (Art.159) and the
\nMinisters  (Schedule II).  It is further contended that in
\nthe  case  of  Samsher Singh v.  State of  Punjab,   the Supreme Court listed  the
\nfollowing  as  one of the exceptional situations in  which
\nthe  President\/Governor may not act upon and in accordance
\nwith the advice of the Ministers :-\n<\/p>\n
  ”  (C) the dissolution of  the
\nHouse  where an appeal to the  country
\nis  necessitous, although in this area
\nthe head of State should avoid getting
\ninvolved  in  politics   and  must  be
\nadvised  by his Prime Minister  (Chief
\nMinister) who will eventually take the
\nresponsibility  for  the step.  We  do
\nnot    examine    in     detail    the
\nconstitutional  proprieties  in  these
\npredicaments  except  to   utter   the
\ncaution that even here the action must
\nbe compelled by the peril to democracy
\nand  the appeal to the House or to the
\ncountry    must     become   blatantly  <\/p>\n
 33.    Based  on  the   aforesaid   passage,   two
\nlimitations  were sought to be spelt out:- (i) action must
\nbe  compelled;  and (ii) the appeal to the House or to the
\ncountry   must  become  blatantly   obligatory.   In   the
\nsubmission  of the petitioners none of these circumstances
\nwere in existence warranting dissolution of the Assembly.\n<\/p>\n
 34.   The  petitioners further contend that  in  a
\nwritten  Constitution it is rarely that everything is said
\nexpressly.  Powers and limitations are always implied from
\nthe  scheme  and  other provisions  of  the  Constitution.
\nImplied limitations have been read into the Constitutional
\nprovisions.  Reliance is placed on the case of Kesavananda
\nBharati  .  It is contended that Art.  368
\nof  the  Constitution  does not speak of  any  limitations
\nthough plenary in nature has been held by Supreme Court to
\nbe  subject to implied and inherent limitations;   namely,
\nthat  power  of  amendment cannot be so  exercised  as  to
\ndestroy or damage the basic structure of the Constitution.
\nApplying  the  doctrine  that the basic structure  of  the
\nConstitution  constitutes  an  implied limitation  on  the
\npower  of  amendment  under Article  368;   Supreme  Court
\nstruck  down  Article  368(5) of  the  Constitution.   The
\npetitioners  relied  upon  another   instance  of  implied
\nlimitation  arising out of constitutional scheme  emerging
\nfrom  is the doctrine that Parliament cannot intrude  into
\njudicial  field and nullify judgment of the Court  without
\nremoving  the  legal  infirmity or the legal base  of  the
\njudgment.   The judgment of the Apex Court in the case of
\nJanapada  Sabha,  Chhindwara ,  is  relied
\nupon  wherein  it  was ruled that it was not open  to  the
\nLegislature  to overrule or set aside the decision of  the
\nApex Court keeping in view the Constitutional Scheme under
\nthe Constitution.  The petitioners further relied upon the
\npassage from the Administrative Law by Wade & Forsyth, 8th
\nEdition  to contend that there is no unfettered discretion
\nin public law:-\n<\/p>\n
 ”  There  is   no   unfettered
\ndiscretion  in public law.   Statutory
\npower  conferred for public purpose is
\nconferred  as  it were upon trust  not
\nabsolutely,  that is to say it can  be
\nvalidly  used  only in the  right  and
\nproper  way,  which   Parliament  when
\nconferring  it  is  presumed  to  have
\nintended.   Although the Crown lawyers
\nhave  argued  in numerous  cases  that
\nunrestricted    permissive    language
\nconfers  unfettered   discretion,  the
\ntruth  is  that, in a system based  on
\nrule  of  law unfettered  governmental
\ndiscretion  is contradiction in terms.<\/p>\n
There  is  nothing paradoxical in  the
\nimposition  of such legal limits.   It
\nwould  be  indeed paradoxical if  they
\nwere   not  imposed.    Nor  is   this
\nprinciple  an  oddity  of  British  or
\nAmerican  law.  It applies no less  to
\nthe Ministers of the Crown.  Nor is it
\nconfined    to     the    sphere    of
\nadministration.   It operates wherever
\ndiscretion  is  given   for  a  public
\npurpose.   It is only where powers are
\ngiven  for  personal  benefit  of  the
\nperson  empowered that the  discretion
\nis absolute.  Plainly this can have no
\napplication in public law. <\/p>\n
 For  the  same  reasons  there
\nshould  in principle be no such  thing
\nas     unreviewable     administration
\ndiscretion  which  should be  just  as
\nmuch  a  contradiction  in  terms   as
\nunfettered discretion.\n<\/p>\n
 It  remains axiomatic that all
\ndiscretion  is  capable of  abuse  and
\nthat  legal limits to every power  are
\nto be found somewhere.”\n<\/p>\n
 35.   The  petitioners  also took me  through  the
\npassage  from  the book of O.  Hood Philips &  Jackson  on
\nConstitutional  and Administrative Law, 8th Edition, (page\n<\/p>\n
166), reading as under:-\n<\/p>\n
  ”  The reason for the  general
\nconventions  that  the   Sovereign  is
\nbound  by the advice of her  Ministers
\nis  not  applicable  if  they  do  not
\nrepresent the wishes of the electorate
\n(or the Commons).  Among other factors
\nthat  would  have  to  be  taken  into
\naccount  before  the  Sovereign  could
\nproperly refuse a dissolution would be
\nthe  time  that had elapsed since  the
\nlast  dissolution,  whether  the  last
\ndissolution took place at the instance
\nof the present opposition, whether the
\nquestion   in   issue  is   of   great
\npolitical   importance,   the   supply
\nposition,  (the grant of a dissolution
\nbeen voted to the Crown for the period
\nthat  would elapse before the  meeting
\nof   the  new    Parliament)   whether
\nParliament  is nearing the end of  its
\nmaximum   term,  whether   the   Prime
\nMinister  is  in  a  minority  in  the
\nCabinet,   and  whether   there  is  a
\nminority government.  ”\n<\/p>\n
 Based  on the above passages it was contended that it  was
\nnot  obligatory on the part of the Governor to accept  the
\naction tendered on the advice of the Council of Ministers.\n<\/p>\n
 36.   The  petitioners further argued  that  under
\nArticle  163(2)  the Governor himself is the authority  to
\ndecide whether he is required by or under the Constitution
\nto  act in his discretion.  The Council of Ministers will,
\ntherefore,  be  powerless  as   against  the  Governor  on
\ndifference  of  opinion  on this question.  No  Court  can
\nnullify its decision on the ground that he should not have
\nacted  in  his discretion in respect of the matter  before
\nthe  Court.  Therefore, the submission is, if the question
\narises whether any matter is or is not a matter as respect
\nto  which  Governor  is by or under any provision  of  the
\nConstitution  required  to  act  in  his  discretion,  the
\ndecision of the Governor on that question is final and the
\nvalidity  of  anything done by the Governor is not  to  be
\ncalled  in  question on the ground that he ought or  ought
\nnot to have acted in his discretion.  Under Article 163(2)
\nthe  Governor  is the sole Judge to decide whether or  not
\nany  power is required by the Constitution to be exercised
\nin  his  discretion  and  the Courts  are  precluded  from
\nexamining that question but the ultimate decision taken by
\nthe Governor is open to challenge in the Court of law.  On
\nthe  aforesaid canvas of submissions;  a prayer is made to
\nexercise  power of review and to examine the order of  the
\nGovernor,  dissolving  the Assembly and  consequent  order
\nappointing – asking the outgoing Ministry to continue as a
\ncaretaker  Government, applying all judicial parameters of
\nadministrative  law and set aside the same holding it bad,
\nillegal  and contrary to the scheme of the Constitution of
\nIndia.\n<\/p>\n
 Submissions of Respondents:\n<\/p>\n
 37.   PER CONTRA, the learned Advocate General  on
\nbehalf  of  the  respondent No.1\/State, refuting  all  the
\nsubmissions  advanced on behalf of the Petitioners, at the
\noutset,  contends  that  there is  material,  literal  and
\nsubstantive  distinction  and difference  between  Art.174(2)(b) and Art. 356 of the Constitution of India.  Material
\navailable  such as Governors report, other reports,  etc.
\nin  case  of  Art. 356 can never be present in  matters  of
\ndissolution  under Art.  174(2)(b).  The condition for the
\nexercise  of the powers under Art. 356 and Art.   174(2)(b)
\nare  entirely different.  Therefore, Bommais case  (cited
\nsupra)  is  not applicable in the present case.   Bommais
\ncase  was  one dealing with a situation,  wherein;   there
\ncould   be   an   impending    danger   to   the   federal
\nstructure\/federation;  when Presidents Rule is inflicted;
\nwhile  under Art. 174(2)(b), dissolution is voluntary  made
\non  recommendation  of  the  Chief  Minister,  Council  of
\nMinisters by the Governor.\n<\/p>\n
 38.   He  further contends that in either  of  the
\npetitions  there  is no whisper of mala fides against  the
\nGovernor  as such petitioners cannot be allowed to  canvas
\nthis contention across the Bar.  The pleadings allege that
\nthe  advice was given by the Chief Minister and not by the
\nCouncil  of  Ministers and further alleged that the  Chief
\nMinister  malafidely mis-represented it to be the decision
\nof the Council of Ministers, which is clearly negatived by
\nall  the affidavits filed in reply.  It is further pointed
\nout no ground is taken in the petitions nor alleged in the
\npetitions that there was no material before the Council of
\nMinisters  or Governor.  No averment is to be found in the
\npetitions in this behalf nor is it pointed out during  the
\ncourse  of hearing as to which Article is violated or that
\nthere  was  legal  prohibition   for  dissolution  of  the
\nAssembly.   In  his submission the entire petition  raises
\nserious  disputed questions of fact;  which are  incorrect
\nand  seriously disputed by the respondents.  The petitions
\ntherefore,  are  required  to be dismissed on  this  short
\ncount.\n<\/p>\n
 39.   He further contends that the petition is not
\nmaintainable in view of the protection to the action taken
\nby  the Governor keeping in view the provisions of Article
\n163(2)  and Article 161 of the Constitution;  as such  the
\nWrit  Petitions  challenging the order of dissolution  are
\nnot  maintainable in law.  In his submission the  Governor
\nas  per  Article  361  enjoys immunity and  would  not  be
\nanswerable  to any Court for the exercise and  performance
\nof  powers and his duties subject to the exception;   such
\nas  blatant  or  serious  violation  of  a  Constitutional
\nprovisions, lack of power.\n<\/p>\n
 40.   He further pressed into service the argument
\nthat  the  Governor exercises discretionary power when  he
\naccepts  advice  of the Council of Ministers and no  court
\nwould  enquire  into such advice tendered by  the  Council
\nMinisters.   The  very decision of the Governor to  accept
\nthe  advice  of  the  Council of Ministers is  an  act  of
\ndiscretion.   He  further contended that  the  petitioners
\nhave  no  right as members of the Legislative Assembly  to
\nhave  an  undissolved  term of 5 years or a  tenure  of  5
\nyears.   Tenure  of Assembly of 5 years is subject to  the
\nfactum  of earlier dissolution.  The words “unless  sooner
\ndissolved”  in  Art.172 clearly indicate that power  under
\nArt.174(2)(b)  intervenes and overrides the normal term of
\nthe  Legislative  Assembly.  It is the prerogative and  an
\nabsolute right of a party commanding majority in the House
\nto  seek Dissolution on ground of political expediency and
\nGovernor  normally  is bound to act in harmony  with  such
\nadvice  of  the  Chief  Minister.    In  support  of   his
\nsubmissions  he placed reliance on paragraphs (54),  (55),
\n(88),  (108)  and (154) appearing in Samsher Singhs  case
\n(Supra) and also borrowed support from Sarkaria Commission
\nReport, Volume (I), page 185.\n<\/p>\n
 41.  He further contended that the Constitution is
\nsilent  as  to  when  the   Government  can  dissolve  the
\nLegislative  Assembly.  In his submission two propositions
\nare  available:-  (a) Governor may not dissolve the  House
\nsuo  motu,  without  Ministerial   advice;   (b)  A  Chief
\nMinister  having a majority support can get a  dissolution
\nof  the House as and when he wants, in other words like  in
\nother democratic set up in other parts of the world, it is
\nfor    the   Chief   Minister    to   choose   the    most
\npropitious\/opportune  time  to go for public mandate.   He
\nfurther contended that such advice given by the Council of
\nMinisters  recommending  dissolution  of  the  Legislative
\nAssembly  being  for political reasons is beyond  judicial
\nscrutiny.   The  judicial review is available  in  matters
\nwhich  are  covered  by Constitutional questions  such  as
\nviolation  of  Constitutional  provision   or  breach   of
\nConstitutional mandate.\n<\/p>\n
 42.  He further submits that on a plain reading of
\nArticle  174(2)(b)  it  is  clear that the  power  of  the
\nGovernor  to dissolve the Assembly is untrammelled in  the
\nsense  no restrictions are put on the Governor in exercise
\nof  the  said power unlike Article 356, which can only  be
\ninvoked in case of failure of the Constitutional machinery
\nin  any  State.  Article 356 requires the President to  be
\nsatisfied  regarding  the  failure  or  breakdown  of  the
\nConstitutional  machinery in the State;   whereas  Article
\n174(2)(b)  does not postulate such kind of satisfaction of
\nthe Governor before dissolving the State Assembly.  In his
\nsubmission,  the  present petitions have raised  questions
\nwhich  intricately relate to political thicket and are not
\nthe Constitutional questions.  He further submits that the
\naffidavits  filed  on  behalf of respondent  No.2  clearly
\nprove  beyond doubt that the advice was on the Council  of
\nMinisters  and  the  resolution   was  adopted  after  due
\ndeliberations  at  the  Cabinet meeting, the  contents  of
\nwhich cannot be disclosed.  The claim of privilege in this
\nbehalf has already been made in the affidavit filed by the
\nState  Government.   He further submits that the  impugned
\norders  cannot  be challenged as they have been passed  in
\nexercise of the discretionary powers of the Governor.  The
\ndiscretionary  powers are not subject to challenge in view
\nof  the  provision  contained in the  Article  163(2)  and
\nArticle  361  of  the  Constitution   of  India.   In  his
\nsubmission   the   judicial   review    of   exercise   of
\ndiscretionary  powers can be on the ground;  (a) There  is
\ntotal  absence of power, and (b) if the power exists,  the
\nauthority  either  exceeds its power or ignores  standards
\ncontained  such as preconditions, etc.  prescribed in  the
\nstatute for the exercise of that power.  In his submission
\nthe  effect  of dissolution of Assembly by Governor  under
\nArticle  174(2)(b) is nothing but for the purpose of fresh
\nelection and there was no other alternative available.  He
\nsubmitted  that the Cabinet decision was taken in order to
\ngo  for fresh elections to secure a fresh popular  mandate
\nwhich  is clearly borne out from the Affidavit as well  as
\nadmissions  flowing  from  averments   contained  in   the
\npetitions  in  this  behalf.   He  relied  upon   specific
\naverment  made  in Writ Petition No.88\/2002 which  states,
\n“the  Chief  Minister dissolved the Assembly to go  for  a
\npopular mandate” and also pressed into service some of the
\npleadings  contained  in the petitions so as to point  out
\nthat  the  Assembly  in  a recent past  had  suffered  two
\ndefections  i.e.   prior  to dissolution.   Based  on  the
\naforesaid  submission  he submitted that the Governor  was
\nwell  within  his right to accept the advice  tendered  by
\nCouncil  of  Ministers enjoying majority of the House  and
\nprayed for rejection of the petition.\n<\/p>\n
 43.    Shri  R.N.    Trivedi,  learned  Additional
\nSolicitor  General  of India, appearing for the  Governor,
\ncontends  that  Part XVIII of the Constitution relates  to
\n“emergency provisions” which is an exception to the normal
\ndemocratic   functioning  of  the   Legislature  and   the
\nExecutive  of  the State.  The decision to exercise  power
\nunder  Article 356 is dependent upon the “satisfaction” of
\nthe  President  on receipt of “Report” from the  Governor.
\nThis  predicts an objective assessment by the Governor and
\nits  evaluation by the President.  Being an exception, the
\nreasons  and  causes for promulgation of Presidents  Rule
\ncan  have no general application, nor the principles  laid
\ndown for determining the scope and nature of power and the
\nextent  of its justiciability is relevant for interpreting
\nthe provisions like Article 174 read with Articles 163 and
\n161  of  the Constitution.  In his submission, the  Report
\nand the satisfaction should be such as a reasonable person
\nwould  come to a conclusion that a situation has arisen in
\nwhich  the Government of the State cannot be carried on in
\naccordance  with  the provisions of the Constitution.   He
\nfurther submitted that the Constituent Assembly was of the
\nunmistakable  opinion  that  the power under  Article  356
\nshould be resorted only in exceptional cases and as a last
\nresort.   He further submitted that a suggestion was  made
\nbefore the Constituent Assembly while debating draft under
\nArticle   153  (now  Article  174)   that  the  power   of
\ndissolution  should be exercised by the Governor only  “if
\nthe  Governor  is  satisfied that  the  administration  is
\nfailing  and  the  Ministry   has  become  unstable.”  The
\nproposed  amendment  was  negatived.   It  is,  therefore,
\nsubmitted   that  certain   restrictions  and   conditions
\nproposed   under   Article  174   were   consciously   and
\ndeliberately negatived.  The things which were consciously
\nexcluded  cannot  be  implied.   It  is  thus  urged  that
\ncircumstances  and  the nature of exercise of power  under
\nArticle 356 and Article 174 are two ends of spectrum.\n<\/p>\n
 44.   He  further submitted that the  observations
\nmade  by  the  Supreme Court in the case of  S.R.   Bommai
\n(supra)  related to the scope and power under Article 356,
\nthe  extent  and standard of permissive  judicial  review,
\ninterpretation  of “satisfaction”, the need for disclosure
\nof  “material” leading to satisfaction and its evaluation.
\nHe  submitted  that  power conferred by Article 356  is  a
\nconditional  power;   it  is not an absolute power  to  be
\nexercised  in  the  discretion  of  the  President.    The
\nexistence  of  the relevant material is a precondition  to
\nthe  formation of the satisfaction.  The Apex Court in the
\nwake  of  conditional  power  was  pleased  to  hold  that
\njudicial review is possible only to a limited extent, that
\ntoo,  in  case  of subjective  political  judgment,  where
\nsatisfaction  is perverse, malafide or based on extraneous
\ngrounds.   In order to ascertain whether the  satisfaction
\nis  subjective, the material on which the satisfaction  is
\nbased  needs  to be examined but such satisfaction is  not
\nnecessary  when  power  under Article 174(2)(b) is  to  be
\nexercised.   To  summarise some of the  basic  differences
\nbetween Article 356 and Article 174 he highlighted some of
\nthe point reproduced in undermentioned comparative chart:\n<\/p>\n
   ARTICLE 356             |        ARTICLE 174\n|\n<\/pre>\n
1. Failure of constitutional  | 1. No failure of constitutional
\nmachinery.                    | machinery.\n<\/p>\n
|\n<\/p>\n
2.Cannot be made on a         | 2. Appeal to the electorate is
\nGovernment being reduced to   | expedient.\n<\/p>\n
minority.                     |\n<\/p>\n
——————————-|———————————\n<\/p>\n
3. Not on advice of Council of| 3. On advice of Council of Mi-
\nMinisters.                    | nisters which is invariably
\n| accepted.\n<\/p>\n
——————————-|———————————\n<\/p>\n
4. Dismissal inflicted by the | 4. Voluntary action of the
\nPresident on report of the    | Council of Ministers which on
\nGovernor.                     | the date of the advice has
\n| majority and even by a
\n| minority government.\n<\/p>\n
——————————|———————————\n<\/p>\n
5. Proclamation is subject    | Judicial review is not
\nto limited judicial re-       | possible as there are no
\nview as it  is based          | words of limitation and
\non the report of the          | there being no judicially
\nGovernor and the              | manageable standard,
\nPresident has to be           | stating of reasons is not
\n“satisfied” that there        | required.\n<\/p>\n
was failure of Constitu-      |\ntional machinery. Stating     |\nof reasons is thus            |\nmandatory.                    |\n<\/pre>\n
——————————-|———————————\n<\/p>\n
6.Casts a stigma on           | 6. Calling for elections
\nGovernment.                   | does not cast any stigma.\n<\/p>\n
——————————-|———————————\n<\/p>\n
7.Judicial review             | 7. Judicial review not
\npermissible.                  |  permissible.\n<\/p>\n
——————————|———————————\n<\/p>\n
8.It can be exercised         | 8. No such requirement is
\nonly in case of failure of    |    contemplated.
\nConstitution in the State.   |
\n|\n<\/p>\n
—————————————————————–\n<\/p>\n
 45.   The  learned  Additional  Solicitor  General
\nreferring  to the Division Bench Judgment of this Court in
\nthe  case  of Pratapsingh Rane (supra) contended that  the
\nsaid case related to a dismissal of Chief Minister and the
\nappointment  of another person as the Chief Minister.   In
\nthat context, propositions were submitted on behalf of the
\nRespondent   No.2  in  that   case.   He  submitted   that
\nproposition  (ii)  in  that  case was  never  accepted  or
\nrecognised as a settled legal proposition by the Court but
\nthe  same was relied upon based on concession;  since  the
\nsaid proposition was accepted by all the concerned parties
\nin  the  case.  As a matter of fact in his submission  the
\nsaid  question  did not arise for determination  and  thus
\ncannot be treated as a precedent.\n<\/p>\n
 46.   In  his submission, the Governors power  of
\ndissolution  under Article 174 is not an “executive power”
\nbut  it  is a “Constitutional power”.   Alternatively,  he
\nsubmits that even if it is held to be an executive powers,
\nit  is not the exercise of all such power which is subject
\nto   full  judicial  review.    Dissolution  is  one  such
\nexception.   He  further submitted that the  principle  of
\nS.R.   Bommais case (supra) to dissolution under  Article
\n174(2)(b) cannot be applied.  He pressed into service Para
\n(209)  of  S.R.   Bommais decision wherein  it  has  been
\nobserved  that  “…..  the prorogation of  Parliament  or
\ndissolution  of  parliament done under Article 85  is  not
\nliable  to judicial review.” He further submitted that the
\ndecision  of  the Apex Court in the case of  S.R.   Bommai
\ncannot  be treated as a precedent for interpreting Article\n<\/p>\n
174.   There is no requirement for the Governor to mention
\nin the Order under Article 174(2)(b) about material on the
\nbasis  of  which  the  dissolution  was  based.   He  thus
\nsubmitted  that  the decision in the case of S.R.   Bommai
\n(supra)  should be read in the context of the provision of
\nArticle  356 and not in isolation.  A decision is only  an
\nauthority for what it actually decides.\n<\/p>\n
 47.   The  learned  Additional  Solicitor  General
\nfurther  submitted  that  normally  the  Governor  has  to
\nexercise  his  power  in harmony with the  advice  of  the
\nCouncil  of Ministers.  In the matter of dissolution,  the
\nGovernor  is  bound  by  the  advice  of  the  Council  of
\nMinisters as held by the Apex Court in the case of Shamser
\nSingh (supra).  He further drew support to this submission
\nfrom  the British Parliamentary system and tried to  point
\nout  that  in England the Parliament is dissolved  on  the
\nadvice  of the Prime Minister which is invariably accepted
\n(Halsburys  Laws  of England Vol.I(34) 4th Edition).   He
\nalso  tried  to  show that in Canada, there was  only  one
\nincident  where  the advice of the Prime Minister was  not
\naccepted  for dissolving the House.(Constitutional law  of
\nCanada,  3rd Edition, By Peter W.  Hogg.  Page   251).  He
\nalso  relied  upon the report of the  Sarkaria  Commission
\nwherein similar recommendations were made.\n<\/p>\n
 48.  He further contends that the entire pleadings
\nin  the  Petitions are based on the assumptions  that  the
\nRespondent  No.3  (Chief  Minister)   was  not  likely  to
\ncontinue  with  the  majority and that the Leader  of  the
\nOpposition  was not called upon to explore the possibility
\nof  forming an alternate Government without pleading  that
\non  the  relevant date any other party other  than  ruling
\nparty had a majority support.  Lastly, he submits that the
\nOrder, directing dissolution of the House\/Assembly being a
\ndiscretionary Order of the Governor based on the political
\njudgment taken by the Council of Ministers, is not open to
\njudicial   review  and  that   there  are  no   judicially
\ndiscoverable  and  manageable standards for  the  judicial
\nreview  of  the  Order of dissolution based  on  political
\nexpediency.   It is further submitted that Governor enjoys
\ncomplete  immunity  in view of Article 161, as such,  this
\nCourt  should not dwell upon the contentions sought to  be
\nraised  in  the Petition and prayed for dismissal  of  the
\nPetition.\n<\/p>\n
 49.   Shri  M.S. Usgaonkar, learned Senior  Counsel
\nappearing  for  the  Respondent No.3  while  adopting  the
\nsubmissions  made  on  behalf of Respondents No.1  and  2,
\ncontends   that   not  a  single   breach  or   abuse   of
\nConstitutional  power on the part of the Governor is to be
\nfound  in  either  of  the Petitions.  If  no  breach  was
\npleaded, no reply was called for from the Respondents.  He
\nfurther  pressed  into  service the  submission  that  the
\ndecision  given  by  the Governor being final and  as  per
\nArticle  163(1), second part, read with Article 163(2),the
\nsame  is immune from judicial review and further contended
\nthat  the decision given by the Governor as per the advice
\nof  the Council of Ministers is not open to debate in  any
\nCourt.  It is outside the purview of the judicial review.\n<\/p>\n
 50.   He further submitted that there is no  legal
\nright  in  the Member of Legislative Assembly to have  the
\nAssembly  for 5 years, but on the contrary the wording  of
\nArticle 174(2) namely “time to time” is an indication that
\nthere  is  no  Constitutional  provision  prohibiting  the
\ndissolution  before  its term.  Article 172 itself  states
\nthat  the  life  of an Assembly is 5 years  unless  sooner
\ndissolved, indicating that it can be dissolved at any time
\nbefore expiry of 5 years.\n<\/p>\n
 51.   He  further tried to highlight the  shifting
\nstand  taken by the Petitioners from time to time.  In his
\nsubmission,  as  per  the frame of the  Petitions  it  was
\nsought   to  be  pleaded  in   the  Petitions   that   the
\nrecommendation  for  dissolution was an unilateral act  of
\nthe  Respondent NO.3, Chief Minister.  In the light of the
\nreplies  filed,  this  point was not pressed for  and  the
\narguments  proceeded  on  the  basis   that  there  was  a
\nrecommendation  of  the Council of Ministers.  He  further
\npointed  out  from the frame of the Petitions that it  was
\nsought  to  be further pleaded in the Petitions  that  the
\nGovernment  headed by Respondent No.3 did not have  stable
\nmajority.   In the light of reply filed that point was not
\npressed  for and the argument proceeded on the basis  that
\nthe  Government  headed by Respondent No.3 had almost  2\/3
\nmajority in the House of 40.\n<\/p>\n
 52.   The learned Counsel for Respondent No.3 drew
\nmy  attention to the Ground (C) (page 10) of Writ Petition
\nNo.84  of 2002 and submitted that the Petition appears  to
\nbe  founded  on  wrong assumption that the advice  of  the
\nChief  Minister was not of Council of Ministers but was  a
\nunilateral  advice  of  the Chief Minister, as it  had  no
\nsupport  of  the remaining other Ministers.  He  submitted
\nthat  the  Respondent No.3 denied the said facts in  Paras
\n(41)  and (45) of his Affidavit, as such the very basis of
\nthe Petition being based on absolute falsehood it needs to
\nbe thrown out.\n<\/p>\n
 53.   Mr.  Usgaonkar further criticised the  tenor
\nof  the  Petition  it   being  suggestive  of  encouraging
\ndefections.    In  his  submission,   the  Leader  of  the
\nOpposition  never  staked his claim to form Government  or
\nnever  claimed  majority  in the House at  any  time  till
\ndissolution.   Not  a  single Member  of  the  Legislative
\nAssembly  at  any  time  approached the  Governor  or  any
\nauthority  like Speaker informing withdrawal of support to
\nthe  Council  of Ministers.  The Council of Ministers  did
\nnot  resign  at  any  point of  time.   Consequently,  the
\nquestion  of formation of the alternate Government did not
\narise  at any time.  If that be so, no fault can be  found
\nin  the  action  of the Governor if he  has  accepted  the
\nadvice  of the Council of Ministers enjoying confidence of
\nthe  House.  In his submission looking the  Constitutional
\nscheme the said advice was binding on the Governor as such
\nhe   has  rightly  accepted   the  same  considering   the
\nprevailing  political  scenario in the State of  Goa.   He
\nthus prayed for dismissal of the Petitions.\n<\/p>\n
 54.   Shri M.S.  Usgaonkar, learned Senior Counsel
\nappearing   for   the   Respondent  No.3,Chief   Minister,
\nsubmitted that since the present Petitions are praying for
\nwrits  in  the nature of Certiorari, to challenge  not  an
\nexecutive  action  but  an  action taken  in  exercise  of
\nConstitutional  power exercised by highest  Constitutional
\nfunctionary of the State, the parameters of Constitutional
\npower  and  justiciability have to be kept in  mind  while
\ndealing with such types of cases.\n<\/p>\n
 55.   The  learned Counsel further took me to  the
\nentire test of the Petitions and tried to demonstrate from
\nthe  various quoted instances given by the Petitioners  to
\nshow  that the Petitioners themselves do not dispute  that
\nthe  Governor  was  required to use his  discretion  while
\nexercising  his powers and discharging his functions under
\nArticle  174(2)(b)  read  with Article 163.  In  order  to
\nbuttress  his  submission he pressed into service  certain
\nallegations and\/or averments leading to undue haste on the
\npart  of  the  Governor in dissolving  and  accepting  the
\nadvice  of the Council of Ministers.  He pointed out  that
\nthe Petitioners strongly tried to make out a case that the
\nGovernor  ought  to  have  called   upon  the  Leader   of
\nOpposition  and  given  him an opportunity  to  prove  his
\nmajority.   In  his  submission all  these  instances  are
\nsufficient to clearly indicate that as per the Petitioners
\nown  submission  the  dissolution of the Assembly  was  an
\naction  taken  by  the Governor in  his  discretion.   The
\nlearned Counsel, therefore, submits that the discretion of
\nthe  Governor is immune from judicial review.  He  submits
\nthat the attack made against the action of the Governor is
\ntherefore  without  merit.  Consequently, the said  action
\ncannot  be  faulted with on the ground that  the  Governor
\nought or ought not to have acted in a particular manner in
\nexercise  of  his  discretion  under  Article  163(2)  and
\ntherefore the Petition is not maintainable.\n<\/p>\n
 56.   He  further  criticised  the  tenor  of  the
\nPetitions  it being suggestive of encouraging  defections.
\nIn  his  submission,  the Leader of the  Opposition  never
\nstaked  his  claim  to form Government  or  never  claimed
\nmajority in the House at any time till dissolution.  Not a
\nsingle  Member of the Legislative Assembly at any point of
\ntime  approached  the  Governor or any  authority;   like;
\nSpeaker  informing withdrawal of support to the Council of
\nMinisters.  The Council of Ministers did not resign at any
\npoint of time.  Consequently, the question of formation of
\nthe  alternate  Government did not arise at any time.   If
\nthat  be so, no fault can be found with the action of  the
\nGovernor  if he has accepted the advice of the Council  of
\nMinisters  enjoying  confidence  of  the  House.   In  his
\nsubmission looking to the Constitutional scheme;  the said
\nadvice was binding on the  Governor as such he has rightly
\naccepted  the  same considering the  prevailing  political
\nscenario in the State of Goa.\n<\/p>\n
 57.   The  learned  Counsel while  concluding  his
\nsubmissions,  submits  that  the present  Petition  is  of
\ndissolution  of Legislative Assembly on the aid and advice
\nof  the  Council of Ministers commanding majority  in  the
\nHouse.   Even otherwise, the Governor having acted on  the
\nadvice  of the Council of Ministers, such action cannot be
\nfaulted  with in view of Article 163(3).  The question  of
\nwhether  any,  and if so what, advice was tendered by  the
\nMinisters to the Governor cannot be enquired into in or by
\nany  Court as such the question of producing advice and\/or
\nmaterial  in support thereof, does not arise.  He strongly
\nsubmitted  that  the  Petitioners   miserably  failed   to
\ndischarge  their burden.  At any rate onus, did not  shift
\non  the  Respondents  as  such there was  no  question  of
\nproducing any material in rebuttal.  He submits that these
\nPetitions  should  not be examined on merits.   He  relied
\nupon  some  of  the  passages from the  judgment  of  S.R.
\nBommai  (supra)  in    support  of   his      submissions.
\nBommai  (supra)  in  support of his  submissions.   advice
\nwhich  cannot be enquired into, there is no material which
\ncan be produced.\n<\/p>\n
 CONSIDERATION  <\/p>\n
 58.  Having heard the rival contentions, one thing
\nis  clear that both sides canvassed two extreme points  of
\nview before me.\n<\/p>\n
 ONE  VIEW, that the power of dissolution exercised
\nby  the Governor under Article 174(2)(b) is in exercise of
\nhis  discretion  though that might have been exercised  on
\nthe  basis  of aid and advice of the Council of  Ministers
\nwith the Chief Minister at its head and the same is beyond
\nthe  judicial scrutiny by virtue of immunity conferred  by
\nArticle 163(2) and (3) of the Constitution.\n<\/p>\n
 THE  OTHER  VIEW, canvassed is that the  power of
\ndissolution   exercised  by  the   Governor  having   been
\nexercised  on  the basis of the advice of the  Council  of
\nMinisters, there is no question of exercise of discretion,
\nas such full judicial enquiry is available and at any rate
\nassuming dissolution to be an outcome of the discretion of
\nthe  Governor,  still the material on the basis  of  which
\nadvice was tendered is open for judicial scrutiny;  may be
\nto  a limited extent i.e.  to the extent of examining  its
\nconstitutionality.\n<\/p>\n
 59.   Both  views have strong friends to  support.
\nBoth  views  were strongly canvassed with  strong  back-up
\nmaterial,  by  the  rival parties to support  their  rival
\nsubmissions.   Before  going  to  dwell  on  the  question
\nwhether  or  not  judicial  review  is  available,  it  is
\nnecessary  to examine:  is it a fit case to undertake this
\njudicial  exercise ?  In the case of S.R.  Bommai  (supra)
\non  which heavy reliance was placed by the Petitioners  in
\nunequivocal terms said thus:\n<\/p>\n
  ”  …Before exercise of the  courts
\njurisdiction  sufficient caution must
\nbe  administered and unless a  strong
\nand  cogent prima facie case is  made
\nout,   the   President    i.e.    the
\nExecutive  must not be called upon to
\nanswer   the    charge.     In   this
\nconnection   I    agree    with   the
\nobservation  of  Ramaswamy, J.  I  am
\nalso  in  agreement  with  Verma,  J.\n<\/p>\n
when  he  says  that  no  quia  timet
\naction  would be permissible in  such
\ncases in view of the limited scope of
\njudicial review in such cases.”\n<\/p>\n
  60.   The same view has been reiterated by Justice
\nJeevan Reddy in the following words:-
\n  ”  We  agree  that merely  because  a
\nperson challenges the validity of the
\nProclamation,  the court would not as
\na  matter  of  course call  upon  the
\nUnion   of  India  to   produce   the
\nmaterial\/information  on the basis of
\nwhich   the  President   formed   the
\nrequisite  satisfaction.   The  court
\nmust  be  satisfied, prima facie,  on
\nthe  basis  of the averments made  by
\nthe  petitioner and the material,  if
\nany, produced by him that it is a fit
\ncase  where the Union of India should
\nbe   called  upon  to   produce   the
\nmaterial\/information  on the basis of
\nwhich   the  President   formed   the
\nrequisite satisfaction.”\n<\/p>\n
 61.   Thus  looking to the above majority  opinion
\ncoming  from Justice Ahmadi, Justice Verma for himself and
\nJustice Yogeshwar Dayal, Justice Ramaswamy, Justice Jeewan
\nReddy  for himself and Justice Agrawal, I would be failing
\nin my duty if I do not examine, prima facie, as to whether
\nor not a strong and cogent prima facie case is made out by
\nthe  Petitioners  on  the basis of averments made  in  the
\nPetitions  and the material;  if any, produced by them  so
\nas to shift onus of proof on the Respondents.  I therefore
\npropose to first address myself on the issue;  is it a fit
\ncase warranting production and examination of the material
\non  the  basis of which the decision was taken  to  advise
\ndissolution  of the Assembly or is it a case wherein prima
\nfacie  burden  is discharged by the Petitioners so  as  to
\ncall  upon the Respondents to justify their action.  It is
\nneedless  to  mention that prima facie case does not  mean
\nthat the Court will examine the merits of the case closely
\nand  come to a conclusion that the Petitioners have a case
\nin  which  they  are  likely to succeed.   This  would  be
\namounting  to prejudging the case on merits.  All that the
\nCourt  has  to  see is that on the face of it  the  person
\ninvoking jurisdiction of the court needs consideration and
\nwhich is not to fail by virtue of some apparent defects.\n<\/p>\n
62.   I therefore without entering into the  hotly
\ndebated   area   giving    rise    to   debatable   virgin
\nConstitutional  issues,  without  laying down any  law  or
\nwithout  determining  any  question as to whether  or  not
\njudicial  review of the impugned action is permissible, if
\npermissible  to  what extent it is permissible.   This  is
\nbeing  made  clear because the possibility of  overlapping
\nconsideration  and discussion in Judgment cannot be  ruled
\nout  inspite  of best efforts.  I, prima facie;   examined
\nthe  merits of the Petitions to ascertain whether any case
\nis  made  out  so  as  to  shift  onus  of  proof  on  the
\nRespondents  keeping  in  mind that  when  any  particular
\nproclamation  is challenged the burden of establishing its<\/p>\n
invalidity  lies upon the Petitioners.  It is for them  to
\nproduce  material  to substantiate their contentions.   In
\nthis  behalf it would be useful to quote observations made
\nby  Apex Court in the case of S.R.  Bommai (supra) reading
\nas under:-\n<\/p>\n
  ”  It  was urged by  Shri  Parasaran,
\nlearned  counsel  appearing  for  the
\nUnion  of  India that where a  person
\nchallenges   the  validity   of   the
\nProclamation  under  Article  356(1),
\nthe burden lies upon him to establish
\nits  validity and that it is not part
\nof  the duty of the Union of India to
\nassist the petitioner in establishing
\nhis  case.   Reliance  is  placed  on
\ncertain   observations   in   Stephen
\nKalong  Ningkong.  He submitted  that
\nit  would  not be a correct  practice
\nfor  the court to call upon the Union
\nof India to justify and establish the
\nvalidity  of the Proclamation  merely
\nbecause  a person chooses to question
\nit.  We do not think that there ought
\nto  be any room for confusion on this
\nscore.”\n<\/p>\n
 There  appears  to be no dissent on this question  amongst
\nthe other Judges constituting the Bench.\n<\/p>\n
 FINDINGS <\/p>\n
 62.   Having heard parties, these are not the  fit
\ncases  wherein  this Court should dwell on either  of  the
\nviews  convassed.  These cases are bound to fail by virtue
\nof  apparent  defects  in the petitions.   The petitioners
\ncould  not  succeed  in  shifting onus  of  proof  on  the
\nrespondents  so  as  to call upon them  to  justify  their
\naction.   These petitions cannot succeed because of  their
\nown  inherent weaknesses.  In support of my conclusion the
\nfollowing are the reasons :\n<\/p>\n
 REASONS  <\/p>\n
 63.   In order to answer the issue, whether or not
\nany  case is made out by the Petitioners to call upon  the
\nRespondents  to produce adequate material to support their
\nimpugned  action,  a  cursory look at  the  Constitutional
\nScheme or our Constitution, would be necessary. <\/p>\n
\n \n\n CONSTITUTIONAL SCHEME  \n \n\n 64.    Before   I   proceed    to   consider   the\n<\/pre>\n
Constitutional  Scheme,  it is necessary to have  a  brief
\nlook  at  the  historical   background  and  the  relevant
\nprovisions  of  the Constitution of India and some of  the
\nJudgments of the Apex Court holding the field.
\nHistorical background :\n<\/p>\n
 65.  The Government of India Act, 1858 transferred
\nthe  responsibility  for administration of India from  the
\nEast  India  Company to the British Crown.   The  Governor
\nthen  became an agent of the Crown, functioning under  the
\ngeneral  supervision of the Governor-General.  He was  the
\npivot of the Provincial administration.\n<\/p>\n
 66.   The Government of India Act, 1935 introduced
\nprovincial autonomy.  The Governor was now required to act
\non the advice of Ministers responsible to the legislature.
\nThe Governor could also act on his discretion in specified
\nmatters.   He functioned under the general superintendence
\nand  control of the Governor General, whenever he acted in
\nhis individual judgment or discretion.\n<\/p>\n
 67.   Independence  inevitably   brought  about  a
\nchange   in  the  role  of   the  Governor.    Until   the
\nConstitution  came  into  force,  the  provisions  of  the
\nGovernment  of  India Act, 1935 as adopted by  the  Indian
\n(Provisional  Constitution) Order, 1947, were  applicable.
\nThis  order  omitted the expressions in his  discretion;
\nacting  in his discretion and exercising his individual
\njudgement  wherever  they occurred in the Act.   Whereas,
\nearlier,  certain  functions were to be exercised  by  the
\nGovernor  either  in his discretion or in  his  individual
\njudgment,  the  Adaptation Order made it incumbent on  the
\nGovernor  to exercise these as well as all other functions
\nonly on the advice of his Council of Ministers.\n<\/p>\n
 68.   The framers of the Constitution accepted, in
\nprinciple,   the  Parliamentary  or   Cabinet  system   of
\nGovernment  of  the British model both for the  Union  and
\nStates.  While the pattern of the two levels of Government
\nwith  demarcated  powers remained broadly similar  to  the
\npre-Independence    arrangements,    their    roles    and
\ninter-relationships  were  given a  major  re-orientation.
\nThe  Constituent Assembly discussed at length the  various
\nprovisions relating to the Governor.  Two important issues
\nwere considered.  The first issue was whether there should
\nbe  an elected Governor.  The second issue related to  the
\nextent  of  discretionary  powers  to be  allowed  to  the
\nGovernor.   Following  the  decision to have  a  nominated
\nGovernor,  references in the various articles of the Draft
\nConstitution  relating  to  the   exercise  of   specified
\nfunctions  by  the  Governor   in  his  discretion  were
\ndeleted.  The only explicit provisions retained were those
\nrelating to Tribal Areas in Assam where the administration
\nwas made a Central responsibility.  The Governor, as agent
\nof  the Central Government during the transitional  period
\ncould  act  independently  of his  Council  of  Ministers.
\nNonetheless, no change was made in the Draft Article which
\nreferred  to  the  discretionary powers of  the  Governor.
\nThis  provision  in  Draft Article 143
\n (now  Article  163)
\ngenerated considerable discussion.  When Clause 143 of the
\nDraft  Constitution  (as Article 163 then was)  was  under
\ndiscussion  in the Constituent Assembly, Shri H.V.  Kamath
\nmoved  an  amendment  for deletion from this  Article  the
\nwords  “except  in  so  far  as he is  by  or  under  this
\nConstitution  required to exercise his function, or any of
\nthem  in  his  discretion”   and  consequent  deletion  of
\nsub-clause  (ii), (which corresponds to clause (2) of  the
\npresent Article giving a definitive powers to the Governor
\nto  decide the question, if any raised, whether any matter
\nis  or is not one as respects which he is by or under  the
\nConstitution  required  to  act in his  discretion).   The
\nproposed  amendment was vigourously supported by Dr.  H.N.
\nKunzru,  Prof.   Shibban Lal Saksena, Shri H.V.   Pataskar
\nand Shri Rohini Kumar Chaudhuri.  The focal point of their
\ncriticism  was  that the wide phraseology in which  Clause
\n143  was  couched,  gave the Governor a general  power  to
\nchoose   in  his  discretion,  whether   or  not  in   the
\nperformance  of  any of his functions he had  to  solicit,
\nabide  by  or  overrule  the  advice  of  his  Council  of
\nMinisters.   In concurrence with Shri T.T.  Krishnamachari
\nand  Shri Alladi Krishnaswami (who opposed the amendment),
\nDr.   Ambedkar  tried to dispel the apprehensions  of  Dr.
\nKunzru  and others by giving this interpretation about the
\nuse  and  scope  of Clause 143:  “This Clause  is  a  very
\nlimited  clause,  it says except in so far as he is by  or
\nunder  this  Constitution”.  Therefore, article  143  will
\nhave  to  be read in conjunction with such other  articles
\nwhich  specifically reserve the power to the Governor.  It
\nis  not  a  general clause giving the  Governor  power  to
\ndisregard  the  advice of his Ministers in any  matter  in
\nwhich he finds he ought to disregard.\n<\/p>\n
 Relevant provisions of the Constitution :\n<\/p>\n
 69.   Inspite of the aforesaid view of the framers
\nof  the  Constitution,  Article  163   which  came  to  be
\nincorporated in the Constitution, reads as under :\n<\/p>\n
 163.   Council  of Ministers to  aid  and
\nadvise  Governor.   –  (1) There  shall  be  a
\nCouncil  of Ministers with the Chief  Minister
\nat  the head to aid and advise the Governor in
\nthe  exercise  of his functions, except in  so
\nfar  as  he is by or under  this  Constitution
\nrequired  to exercise his functions or any  of
\nthem in his discretion.\n<\/p>\n
 (2)  If  any question arises whether  any
\nmatter is or is not a matter as respects which
\nthe  Governor is by or under this Constitution
\nrequired  to  act  in   his  discretion,   the
\ndecision  of  the Governor in  his  discretion
\nshall  be final, and the validity of  anything
\ndone  by  the Governor shall not be called  in
\nquestion  on the ground that he ought or ought
\nnot to have acted in his discretion.\n<\/p>\n
 (3)  The question whether any, and if  so
\nwhat,  advice was tendered by Ministers to the
\nGovernor shall not be inquired into any Court.\n<\/p>\n
 Article  163  states  that  there shall be  a  Council  of
\nMinisters,  with the Chief Minister at the head to aid and
\nadvise  the  Governor  in the exercise of  his  functions,
\nexcept  in  so far as he is by or under this  Constitution
\nrequired  to exercise his functions or any of them in  his
\ndiscretion.   Article  163(2) states that if any  question
\narises  whether  any  matter  is or is  not  a  matter  as
\nrespects   which  the  Governor  is   by  or  under   this
\nConstitution  required  to  act  in  his  discretion,  the
\ndecision  of the Governor in his discretion shall be final
\nand  the  validity of anything done by the Governor  shall
\nnot  be called in question on the ground that he ought  or
\nought not to have acted in his discretion.\n<\/p>\n
 70.   The next Article which needs a reference, is
\nArticle 174, which reads as under :\n<\/p>\n
 174.   Sessions  of the State  Legislature,
\nprorogation   and  dissolution.   –  (1)   The
\nGovernor  shall  from time to time summon  the
\nHouse  or each House of the Legislature of the
\nState  to  meet at such time and place  as  he
\nthinks fit, but six months shall not intervene
\nbetween  its  last sitting in one session  and
\nthe  date  appointed for its first sitting  in
\nthe next session.\n<\/p>\n
 (2) The Governor may from time to time –\n<\/p>\n
 (a) prorogue the House or either House;\n<\/p>\n
 (b) dissolve the Legislative Assembly.\n<\/p>\n
 Draft  Article  153(3) said that the  functions  of  the
\nGovernor  under  Clauses (a) and (c) of the Clause (2)  of
\nthe  Article shall be exercised by him in his  discretion.
\nDraft  Article  153(3) was totally amended when it  became
\nArticle 174 of our Constitution.\n<\/p>\n
 71.   At this juncture, in order to understand the
\nConstitutional  philosophy of Article 163, it is necessary
\nto  take into account the historical background of Article\n<\/p>\n
74.   Our Constitution deals with the Union and the  State
\nExecutive  separately,  but  as the provisions  follow,  a
\ncommon pattern and are in most cases mutatis mutandis  the
\nsame  for  the  Union  and  for  the  States.   It  would,
\ntherefore,  be  necessary  to refer to Article 74  of  the
\nConstitution, which reads as under :\n<\/p>\n
 74.   Council  of  Ministers  to  aid  and
\nadvise  President.-  [(1)  There  shall  be  a
\nCouncil  of Ministers with the Prime  Minister
\nat  the  head to aid and advise the  President
\nwho  shall, in the exercise of his  functions,
\nact in accordance with such advise:] <\/p>\n
 [Provided  that the President may  require
\nthe  Council  of Ministers to reconsider  such
\nadvice, either generally or otherwise, and the
\nPresident  shall  act in accordance  with  the
\nadvice tendered after such reconsideration.] <\/p>\n
 (2)  The  question whether any, and if  so
\nwhat,  advice was tendered by Ministers to the
\nPresident  shall  not be inquired into in  any
\nCourt.”\n<\/p>\n
 72.   It is noticeable that though in Article  74
\nit  is stated that there shall be a Council of  Ministers
\nwith  Prime  Minister at the head to aid and  advise  the
\nPresident  in  exercise  of his functions,  there  is  no
\nprovision  in  Article 74 comparable to Article 163  that
\nthe  aid and advice is except in so far as he is required
\nto  exercise  his  functions  or   any  of  them  in  his
\ndiscretion.\n<\/p>\n
 73.   In  order  to  appreciate  the  contentions
\nraised in these petitions with respect to the role played
\nby  the  Governor  of the State of Goa, I  also  examined
\nrelevant portion of Article 361 of the Constitution. <\/p>\n
 “361.    Protection  of   President   and
\nGovernors   and    Rajpramukhs.-    (1)   The
\nPresident, or the Governor or Rajpramukh of a
\nState,  shall not be answerable to any  Court
\nfor  the  exercise  and  performance  of  the
\npowers  and  duties of his office or for  any
\ndone  or purporting to be done by him in  the
\nexercise  and performance of those powers and
\nduties :\n<\/p>\n
 Provided   that   the   conduct  of   the
\nPresident  may be brought under review by any
\nCourt,   tribunal   or   body  appointed   or
\ndesignated  by either House of Parliament for
\nthe  investigation of a charge under  article
\n61:\n<\/p>\n
 Provided  further  that nothing  in  this
\nclause  shall be construed as restricting the
\nright  of  any  person to  bring  appropriate
\nproceedings  against the Government of  India
\nor the Government of a State.\n<\/p>\n
 (2)  No  criminal proceedings  whatsoever
\nshall  be instituted or continued against the
\nPresident, or the Governor of a State, in any
\ncourt during his term of office.\n<\/p>\n
 (3)   No  process  for   the  arrest   or
\nimprisonment   of  the   President,  or   the
\nGovernor  of  a State, shall issue  from  any
\ncourt during his term of office.\n<\/p>\n
(4)  No civil proceedings in which relief
\nis  claimed  against  the President,  or  the
\nGovernor  of  a  State, shall  be  instituted
\nduring  his  term of office in any  court  in
\nrespect  of any act done or purporting to  be
\ndone by him in his personal capacity, whether
\nbefore or after he entered upon his office as
\nPresident,  or  as  Governor of  such  State,
\nuntil the expiration of two months next after
\nnotice  in writing has been delivered to  the
\nPresident  or  the Governor, as the case  may
\nbe,  or left at his office stating the nature
\nof  the  proceedings,  the  cause  of  action
\ntherefor,  the name, description and place of
\nresidence   of  the  party   by   whom   such
\nproceedings  are  to  be instituted  and  the
\nrelief which he claims.\n<\/p>\n
 74.   At  this  juncture, it will not be  out  of
\nplace  to  mention that much debate was generated on  the
\nscope  of  Article  163  vis-a-vis  Article  356  of  the
\nConstitution.   Article 356 deals with provisions in case
\nof  failure  of  constitutional   machinery  in   States.
\nHowever, reproduction thereof is not necessary.\n<\/p>\n
 75.   The constitutional scheme reveals that  the
\nexecutive  power of the Union is vested in the  President
\nunder  Article in the President under Article 53(1).  The
\nexecutive  power  of the State is vested in the  Governor
\nunder  Article  154(1).   The   expressions  “Union”  and
\n“States”   occurring  in  Articles   53(1)   and   154(1)
\nrespectively  to  bring  about   the  federal  principles
\nembodied  in  the  Constitution.   Any  action  taken  in
\nexercise  of  the executive power of the Union vested  in
\nthe  President  under  Article  53(1)  is  taken  by  the
\nGovernment  of India in the name of the President as will
\nappear  in Article 77(1).  Similarly, any action taken in
\nthe  exercise of the executive power of the State  vested
\nin  the  Governor  under Article 154(1) is taken  by  the
\nGovernment  of  the State in the name of the Governor  as
\nwill appear in Article 166(1).\n<\/p>\n
 76.  There are two significant features in regard
\nto  the  executive  action  taken  in  the  name  of  the
\nPresident  or  in the name of the Governor.  Neither  the
\nPresident  nor  the Governor may sue or be sued  for  any
\nexecutive action of the State.  First, Article 300 states
\nthat  the  Government of India may sue or be sued in  the
\nname  of the Union and the Governor may sue or be sued in
\nthe  name of the State.  Second, Article 361 states  that
\nproceedings  may  be  brought against the  Government  of
\nIndia and the Government of the State but not against the
\nPresident or the Governor.  Articles 300 and 361 indicate
\nthat  neither the President nor the Governor can be  sued
\nfor  executive actions of the Government.  The reason  is
\nthat neither the President nor the Governor exercises the
\nexecutive   functions    individually    or   personally.
\nExecutive  action  taken in the name of the President  is
\nthe  action of the Union.  Executive action taken in  the
\nname  of  the  Governor is the executive  action  of  the
\nState.   Article  361 provides absolute immunity  to  the
\nPresident   and  the  Governor   for  the  exercise   and
\nperformance  of the powers and duties of their office  or
\nfor  any act done or purporting to be done by them in the
\nexercise  and  performance  of those powers  and  duties,
\nsubject,  as  regards  the President, to  an  impeachment
\nunder  Article  61.   Article 361(2)  offers  a  complete
\nimmunity to the Governor not only against the institution
\nof  such proceedings but against their continuance if  he
\nwas  appointed  as a Governor after the proceedings  were
\ninstituted.\n<\/p>\n
 77.   Having created the offices of the President
\nand  the Governor, and vested the executive power of  the
\nUnion  and the States respectively in them, the executive
\npower  of  the  Union  is   made  co-extensive  with  its
\nlegislative  power, except that unless expressly provided
\nin the Constitution or by any law made by Parliament, the
\nexecutive  power  does  not extend to any matter  in  the
\nconcurrent  legislative  list.  Similarly, the  executive
\npower  of  the  State  is   made  co-extensive  with  its
\nlegislative  power,  subject, as regards matters  in  the
\nconcurrent  legislative  list,  to  the  executive  power
\nexpressly  conferred  by the Constitution or by  any  law
\nmade  by  Parliament, upon the Union or  the  authorities
\nthereof.\n<\/p>\n
 78.   The exercise of the executive power of  the
\nUnion  or  the States is a function of the President  and
\nthe Governors respectively and in order to aid and advise
\nthem  in  the exercise of their functions,  provision  is
\nmade  for a Council of Ministers.  Article 74(1) provides
\nthat there shall be a Council of Ministers with the Prime
\nMinister at the head.  The question whether any and if so
\nwhat advice was tendered by ministers to the President is
\nnot  to be inquired into in any Court.  Articles 163  and
\n164  contain mutatis mutandis the same provisions for the
\nCouncil  of Ministers to aid and advise the Governor with
\nthe  qualification  that the Council of Ministers  is  to
\n“aid  and  advise  the  Governor   in  exercise  of   his
\nfunctions,  except  in so far as he is by or  under  this
\nConstitution required to exercise his functions or any of
\nthem  in his discretion.” If any question arises, whether
\nany  matter  is or is not a matter as respects  with  the
\nGovernor  is by or under the Constitution required to act
\nin  his discretion, the decision of the Governor on  that
\nquestion  is  final and the validity of anything done  by
\nhim is not to be called in question on the ground that he
\nought  or ought not to have acted in his discretion.  The
\nexecutive  power  is  not defined  in  our  Constitution.
\nArticles  73  and  163 are concerned primarily  with  the
\nextent  of executive power, and its distribution  between
\nthe Union and the States.\n<\/p>\n
 79.    A  Seven  Judges   Bench  decided  a  very
\nimportant  question about the constitutional position  of
\nthe  President  and the Governor under our  Constitution.
\nThe  Seven  Judges  Bench  was  constituted  to  consider
\nwhether the decision in the case of Sardari Lal v.  Union
\nof  India,<\/a>   was  correct.   The
\ndecision lays down the following proposition:\n<\/p>\n
 ”   (a)  Our    Constitution   generally
\nembodies  the  Parliamentary or the  Cabinet
\nform  of  Govt.  on the British model,  both
\nfor the Union and the States. <\/p>\n
 (b)  It  is a fundamental  principle  of
\nEnglish   constitutional   law    that   the
\nSovereign   does   not  act   on   his   own
\nresponsibility  but  on  the advice  of  his
\nMinisters  who accept responsibility and who
\ncommand  the  confidence  of  the  house  of
\nCommons.    This   principle    of   English
\nconstitutional   law  is   embodied  in  our
\nConstitution.\n<\/p>\n
 (c)  It follows from the British form of
\nParliamentary  or  Cabinet Govt.   that  the
\nPresident  and the Governors are the  formal
\nor Constitutional heads of the Union and the
\nStates  and  they must act with the aid  and
\nadvice  of  the Council of Ministers  except
\nwhere  a  contrary provision is made by  the
\nConstitution.\n<\/p>\n
 (d) …\n<\/p>\n
 (e) …\n<\/p>\n
 (f)   However,  the   position  of   the
\nGovernor  is  slightly  different,  because,
\nArt.   163 provides:  “Council of  Ministers
\nto aid and advise Governor.- (1) There shall
\nbe  a  Council of Ministers with  the  Chief
\nMinister  at the head to aid and advise  the
\nGovernor  in the exercise of his  functions,
\nexcept  in so far as he is by or under  this
\nConstitution   required  to   exercise   his
\nfunctions  or any of them in his discretion.\n<\/p>\n
2)  If  any  question  arises  whether  any
\nmatter  is  or is not a matter  as  respects
\nwhich  the  Governor  is by  or  under  this
\nConstitution   required   to   act  in   his
\ndiscretion,  the decision of the Governor in
\nhis  discretion  shall  be  final,  and  the
\nvalidity  of  anything done by the  Governor
\nshall  not  be  called in  question  on  the
\nground  that  he ought or ought not to  have
\nacted  in his discretion.  (3) The  question
\nwhether,  any,  and if so, what  advice  was
\ntendered  by Minister to the Governor  shall
\nnot be inquired into in any Court.”\n<\/p>\n
 (g) Provisions of our Constitution which
\nuse  the expression “in his discretion” with
\nreference  to  the  Governor  are  :   Art..\n<\/p>\n
371A(1)(b)  and  (d) and 2(b) and  (f),  and
\nSch. VI pares 9(2) and 18(3).  In addition to
\nthe  expression  provisions mentioned  above
\nthere are two provisions where, by necessary
\nimplication,  the  Governor can act  in  his
\ndiscretion.   Thus Art.  356 shows that  the
\nGovernor  can make a report to the President
\nthat  a  situation has arisen in  which  the
\nGovernment of the State cannot be carried on
\nin  accordance  with the provisions  of  the
\nConstitution.   “Here the Governor would  be
\njustified  in exercising his discretion even
\nagainst  the  advice  of   his  Council   of
\nMinisters  (because)  the   failure  of  the
\nConstitutional  machinery may be because  of
\nthe  conduct  of the Council of  Ministers”.
\nAgain,  “Art.  200 requires the Governor  to
\nreserve   (for  the   consideration  of  the
\nPresident)  any Bill which in his opinion if
\nit  became  law would so derogate  form  the
\nPower  of the High Court as to endanger  the
\nposition which the High Court is designed to
\nfill  under  the Constitution…  Art.   200
\nindicates   another  instance    where   the
\nGovernor  may act irrespective of the advice
\nfrom the Council of Ministers.”\n<\/p>\n
 (h)  Article 163 provides for a Council of
\nMinisters  to  aid and advise the Governor  in
\nthe  exercise  of his functions makes him  the
\nsole  and final judge whether any function  is
\nto  be  exercised in his discretion or on  the
\nadvice  of the Council of Ministers.  Although
\nArt.   74  also  provides  for  a  Council  of
\nMinisters  to  aid and advise  the  President,
\nthat   Article   does  not    refer   to   any
\ndiscretionary  power on the President and as a
\nconsequence, there is no provision in Art.  74
\ncorresponding  to Art.  163(2) which makes the
\nGovernor the sole judge in any matter in which
\nhe is required to act in his discretion.\n<\/p>\n
 (i) …\n<\/p>\n
 (j) ….\n<\/p>\n
 (k) ….\n<\/p>\n
 (l) …. ”\n<\/p>\n
 In proposition (h) above, the distinction between
\nthe provisions of Art.  74 and 163(2) has been noticed by
\nthe Apex Court and observed :\n<\/p>\n
  ”  Of course, there is some  qualitative
\ndifference  between  the   position  of  the
\nPresident  and  the Governor.   The  former,
\nunder   Article  74   has  no  discretionary
\npowers;   the latter too have none, save  in
\nthe  tiny strips covered by Articles 163(2),
\n371-A(1)(b) and (d), 371-A(2)(b) and (f), VI
\nSchedule  para  9 (2) (and VI Schedule  para
\n18(3),  until  omitted recently with  effect
\nfrom 21.1.1972).  These discretionary powers
\nexist  only  where expressly spelt  out  and
\neven these are not left to the sweet will of
\nthe  Governor  but are remote-controlled  by
\nthe  Union  Ministry which is answerable  to
\nParliament  for  those   actions.   Again  a
\nminimal  area centering round reports to  be
\ndispatched under Article 356 may not, in the
\nnature of things, be amenable to ministerial
\nadvice.   The practice of sending periodical
\nreports  to  the  Union   Government  is   a
\npre-constitutional one and it is doubtful if
\na Governor could or should report behind the
\nback  of  his  Ministers.  For  a  centrally
\nappointed constitutional functionary to keep
\na  dossier  on  his Ministers or  to  report
\nagainst  them  or to take up public  stances
\ncritical of Government policy settled by the
\nCabinet    or   to     interfere   in    the
\nadministration    directly   –   these   are
\nunconstitutional faux pas and run counter to
\nparliamentary    system.    In    all    his
\nconstitutional   function   it    is   the
\nMinisters  who  act;   only in  narrow  area
\nspecifically  marked  out for  discretionary
\nexercise   by   the   Constitution,  he   is
\nuntrammelled  by  the State Ministers  acts
\nand   advice.    Of    course,   a   limited
\nfree-wheeling  is available regarding choice
\nof  Chief  Minister  and  dismissal  of  the
\nMinistry, as in the English practice adapted
\nto Indian conditions.”\n<\/p>\n
 80.    However,   the   question  which   requires
\nconsideration  in the light of the fact that Article 74(1)
\nprovides  that there shall be Council of Ministers to  aid
\nand advise the President in the exercise of his functions.
\nArticle  163(1) makes the same provision, mutatis mutandis
\nfor the Governors.  If the correct conclusion to draw from
\nArticles  74(1)  and 163(1) is that the President and  the
\nGovernors  are not obliged to accept and act according  to
\nthat  advice,  it  would follow that in the  discharge  of
\ntheir  functions,  the president and the Governors have  a
\ndiscretion  to  disregard  the advice of  the  Council  of
\nMinisters.  But such a conclusion is inconsistent with the
\nexpress  conferment of discretionary power on the Governor
\nunder  Article 163(2), for, if Governors have a discretion
\nin  all  matters  under  Article   163(1),  it  would   be
\nunnecessary to confer on Governors an express power to act
\nin  their  discretion  in a few  specified  matters.   The
\nconferment  of  specified  discretionary   powers  on  the
\nGovernor  by  Article 163(2), but not on the President  by
\nArticle  74, negatives the view that the President and the
\nGovernors  have  a  general  discretionary  power  to  act
\nagainst the advice of the Council of Ministers.\n<\/p>\n
 81.   In  view  of the above decision  in  Samsher
\nSinghs (supra) case, the proposition that the Governor is
\nrequired  to  act  in  his   discretion  only  by  express
\nprovisions, is no longer good law, for, both the judgments
\n(of  A.N.  Ray, C.J.  and Krishna Iyer, J.) ruled that  in
\nsome cases the Governor had power to act in his discretion
\nas   a  matter  of   necessary  implication.   Again,  the
\nstatement  that  the  words “in his discretion”  have  the
\ntechnical  meaning  given to them under the Government  of
\nIndia  Act 1935 is also not good law and the Supreme Court
\ngave  those  words their plain natural  meaning;   namely,
\nthat  where  the Governor acts “in his discretion”, he  is
\nnot  obliged  to  follow the advice given to  him  by  the
\nCouncil of Ministers.\n<\/p>\n
82.  The Sarkaria Commission was appointed to look
\ninto  and  report on Central-State  relations  considered,
\ninter  alia,  the  manner  in which this  power  has  been
\nexercised  over the years and made certain recommendations
\ndesigned  to prevent its misuse.  Since the Commission was
\nheaded by a distinguished Judge of the Apex Court and also
\nbecause  it  made  its  report   after  an  elaborate  and
\nexhaustive  study of all relevant aspects, the Apex  Court
\nin  S.R.   Bommais case (cited supra) observed  that  the
\nsaid  opinion  is  certainly   entitled  to  great  weight
\nnotwithstanding  the  fact  that the report had  not  been
\naccepted  at the relevant time by the Government of India.
\nIn para 4.11.25, the said the Commission observed that the
\nCouncil  of Ministers may advise the Governor to  dissolve
\nthe  Legislative Assembly on the ground that it wishes  to
\nseek a fresh mandate from the electorate.  If the Ministry
\nenjoys a clear majority in the Assembly, the Governor must
\naccept the advice.  However, when the advice of dissolving
\nthe  Assembly  is made by the Ministry which has  lost  or
\nappears  to  have  lost majority support,  the  Government
\nshould  adopt  the  course of action  suggested  in  paras
\n4.11.09   to   4.11.13   and     4.11.20   of   the   said
\nrecommendations.   Thus from the said recommendations,  it
\nwould be clear that the Governor must accept the advice of
\nthe Ministry enjoying clear majority in the Assembly.\n<\/p>\n
83.   At this juncture it will not be out of place
\nto  refer to the decision of P.  Joseph John v.  State  of
\nTravancore  Cochin,    and<\/a>  on  the
\nfollowing  observations  made therein at page 165  of  the
\nreport :\n<\/p>\n
  “It  is  an elementary  principle  of
\ndemocratic  Government prevailing  in
\nEngland    and    adopted    in   our
\nConstitution  that the Rajpramukh  or
\nthe  Governor as head of the State is
\nin    such     matters    merely    a
\nconstitutional  head and is bound  to
\naccept the advice of his Ministers.”\n<\/p>\n
 The  National Commission constituted to Review the Working
\nof  the  Constitution,  had  an occasion  to  circulate  a
\nconsultation  paper  on the Institution of Governor  under
\nthe Constitution, wherein, the recommendations made by the
\nSarkaria  Commission contained in Chapter IV (relating  to
\nGovernors)  were by and large accepted, subject to certain
\nsuggestions  made in the said working paper.  One of  such
\nrecommendations  is  that  so  long   as  the  Council  of
\nMinisters  enjoys  the  confidence   of  the   Legislative
\nAssembly, the advice of the Council of Ministers in regard
\nto summoning and proroguing a House of the Legislature and
\nin  dissolving the Legislative Assembly, if such advice is
\nnot patently unconstitutional, should be deemed as binding
\non  the Governor.  If the Assembly is to be dissolved  and
\nan  election  can  be  held  early,  the  Governor  should
\nnormally  ask  the  outgoing  Ministry to  continue  as  a
\ncaretaker  Government.   However, this step would  not  be
\nproper  if the outgoing Ministry has been responsible  for
\nserious  mal-administration  or corruption.  A  convention
\nshould  be adopted that a caretaker Government should  not
\ntake  any major policy decisions.  Since the Commission to
\nreview  Constitution was  headed by a distinguished former
\nChief Justice of India and also because it made its report
\nafter elaborate and exhaustive study of the working of the
\nConstitution   in  the  past,   its  recommendations   are
\ncertainly  entitled  to great weight, notwithstanding  the
\nfact  that  the  report has not yet been accepted  by  the
\nGovernment  of India.  Thus, taking into account the above
\nrecommendations and suggestions, one has to consider as to
\nwhether  the petitioners have made out a prima facie case,
\nso  as  to  call  upon the respondents  to  justify  their
\naction.   At this juncture, I must make it clear that I am
\nnot recording any findings as to whether a judicial review
\nis  available or not.  The Constitutional Scheme is looked
\ninto  only to reach to the conclusion as to whether or not
\nprima facie case is made out by the petitioners warranting
\ndetermination   of   issue     whether   judicial   review
\nand\/or  justiciability of the issue is or is not open?\n<\/p>\n
 84.  Having examined the historical background and
\nscheme of our Constitution, in that light, let me examine,
\nin  the  facts and circumstances of these cases;   whether
\nthe  petitioners  have  made  out any  prima  facie  case,
\nwarranting   judicial   review   or    for   that   matter
\njusticiability  of  the issue of dissolution.  If yes,  to
\nwhat  extent.   This  question will have to  be  addressed
\nlooking  to  the  pleadings and allegations  made  in  the
\npetitions.   Now  let me turn to the facts stated  in  the
\nWP.No.84\/2002  Shri Luizinho Joaquim Faleiro v.  State of
\nGoa.\n<\/p>\n
 W.P.  No.84\/2002:\n<\/p>\n
 85.   The contents of paras 1.  2(i) to (xi)  deal
\nwith  the  bare  facts  and the inferences  drawn  by  the
\npetitioner  himself.  In para 2(xii), the allegations  are
\nthat  without proper notice to the Members of the  Council
\nof  Ministers or without following appropriate  procedure,
\npassing  resolution of the Council of Ministers, the Chief
\nMinister,  in  connivance with the Chief Secretary of  the
\nState, mis-represented to the Governor that the Council of
\nthe  Ministers had taken unanimous resolution to recommend
\nto  the  Governor  of  Goa  to  dissolve  the  Legislative
\nAssembly.   Therefore,  an attempt made in  the  petition,
\nappears  to  be to make out a case that no resolution  was
\never  passed,  much  less  any  unanimous  resolution  was
\npassed.   As  I further proceed to read petition,  para  2\n<\/p>\n
(xiii)  makes  a factual averment which hardly  needs  any
\ninvestigation.    Para  3   contains  formal  allegations;
\nwhereas  in  para 3.(A), the petitioner asserts  that  the
\nChief  Minister  would  have  had to face  a  vote  of  no
\nconfidence,  as such, he opted for alternative and  sought
\nthe  dissolution  of  the  House and  the  Governor  acted
\ncontrary  to  the  well established  principles  governing
\ndissolution  of the Legislative Assembly on the advice  of
\nthe  Council of Ministers which was not likely to continue
\nwith  the majority.  In the subsequent part of this  para,
\nan  attempt  is  made  to  bring  on  record  the  alleged
\ninstability  of  the  Government and  certain  news  paper
\nreports  were  sought  to  be   relied  upon,  which  are,
\nadmittedly, subsequent to the order of dissolution.\n<\/p>\n
 86.   In  para 3.B., an attempt is made to  allege
\nthat  the  Chief  Minister  did  not  command  the  stable
\nmajority and exercise of power on the part of the Governor
\nto dissolve the house almost 2 and half years prior to the
\nexpiry of its normal term, was bad and illegal.\n<\/p>\n
 87.   Then in para 3.C.  allegations are that  the
\nLeader  of  Opposition  was not granted interview  by  the
\nGovernor  and he dissolved the Legislative Assembly on the
\nadvice  of  the Chief Minister and not of the  Council  of
\nMinisters  and  in doing so, the Governor acted  in  undue
\nhaste  and  that  the Governor should not  have  exercised
\nthese  powers  and ought to have refused the  dissolution.
\nThen  in the rest of the petition, a case is sought to  be
\nmade  out that there was no change in circumstances  after
\nconvening   meeting  of  the   Legislative  Assembly   for
\napproving  the  budget.  Relying upon the Judgment of  the
\nApex Court in S.R.  Bommais case (cited supra), a case is
\nsought  to  be  made  out that the  Governor  should  have
\ninvited  the  Leader of Opposition and given him  time  to
\nprove  his  majority on the Floor of the House and  should
\nhave  explored  the possibility to  ensure  Constitutional
\nGovernment  in the State.  It is further alleged that  the
\nGovernor  was  duty bound to protect, preserve and  uphold
\nthe  Constitution.   With these pleadings, declaration  of
\ninvalidity  of the order dissolving the State Assembly  is
\nprayed for.\n<\/p>\n
 W.P. No.88\/2002  <\/p>\n
 88.   The second petition being WP.  No.88\/2002 is
\nalso directed against the order of the Governor permitting
\nthe  Chief  Minister, Respondent No.3 and his  Council  of
\nMinisters  to  continue to carry on their functions.   The
\npetitioners in para 3 of this petition tried to make out a
\ncase  that  the advice tendered by the Chief Minister  was
\nmala  fide in dissolving the Legislative Assembly ahead of
\nmore  than  two years of its tenure.  No real and  genuine
\ngrounds  existed  on the basis of which an honest  opinion
\ncould  be formed by the Governor to dissolve the  Assembly
\nand  in fact, the decision of the Governor was vitiated by
\nmala  fide considerations.  This petition also repeats the
\nsame  allegations  as are made in the earlier petition  to
\nthe  effect  that  the Governor was bound  to  follow  the
\nconstitutional  mandate  of holding consultation with  the
\nLeader  of Opposition and ought to have taken into account
\nthe  newspaper  reports and should have taken  independent
\ndecision  to  reject  the  advice tendered  by  the  Chief
\nMinister.   An attempt is made to make out a case that the
\nGovernor  should have consulted individual members of  the
\nCouncil  of  Ministers  to ascertain the veracity  of  the
\nclaim  of the Chief Minister and the reasons sought to  be
\ngiven  by respondent No.3 that he recommended  dissolution
\nin  order to seek fresh mandate from the people as he  was
\nhaving fractured mandate.  An attempt is also made to make
\nout  a  case  that  even  in  the  absence  of  judicially
\ndiscernible  standards  the  Courts have  every  power  to
\nexercise  jurisdiction as the policy of the judicial hands
\noff  in  political matters will not be applicable  to  the
\nfacts of the present cases.\n<\/p>\n
 89.   The petitioners, relying on the Judgment  of
\nS.R.   Bommai (cited supra) prayed for judicial review and
\nconsequently for setting aside the action of the Governor.
\nThe  petition  is mainly based on the aforesaid  extracted
\npleadings.   An  attempt is made to make out a  case  that
\nrespondent  No.3  was expecting a motion of No  Confidence
\nand  therefore, with mala fide intention to avoid  landing
\nin  precarious situation, he unilaterally tendered  advice
\nto dissolved the Legislative Assembly and in accepting the
\nsaid  advice, without consulting the Lead of Opposition or
\nwithout  providing  an  opportunity to form  an  alternate
\nGovernment,  the  Governor decision to dissolve the  House
\nwas with undue haste.\n<\/p>\n
 90.   The aforesaid pleadings and the total impact
\nthereof,  if taken into account, prima facie attempt seems
\nto be to establish that the Chief Minister and the Council
\nof  Ministers were likely to face some defection with  the
\nresult,  party in power was to be reduced to insignificant
\nminority.   In  order to avoid this situation,  the  Chief
\nMinister on his own, unilaterally, without there being any
\ndecision of the Council of Ministers, advised the Governor
\nof  the State to dissolve the House, so as to seal fate of
\nmotion of no confidence.  In this situation, the assertion
\nis  that the Governor should not have accepted the  advice
\nand  should have made an attempt to give an opportunity to
\nthe  petitioners,  or the Leader of Opposition to form  an
\nalternate Government.  In not doing so, the Governor acted
\nin  undue  haste  and dissolved the  Legislative  Assembly
\nwithout   application  of  mind.    These  are  the   bare
\nchallenges set up in the petitions, though these petitions
\nwere  argued on the larger canvass, larger than the  scope
\nof respective petition.\n<\/p>\n
 91.  The aforesaid allegations were replied by all
\nthe  respondents  by  filing  affidavits.   The  situation
\nemerging  on  record  therefrom  is that  the  meeting  of
\nCouncil  of  Ministers  did take place at 10.30  a.m.   on
\n27.2.2002.   The Chief Secretary of the State himself  was
\npresent  for  the said Meeting.  In the said meeting,  the
\nCouncil  of  Ministers resolved to advise the Governor  of
\nthe  State  to  dissolve  the  Legislative  Assembly.   In
\nsupport  of this fact, 21 Affidavits are filed on  record,
\naffirmed  by  the 21 Members of the Legislative  Assembly,
\nincluding  that of 13 Members of Council of Ministers  (13
\nMinisters), who, unequivocally said on oath that they were
\npresent  for  the  Cabinet Meeting chaired  by  the  Chief
\nMinister  of  the  State  (Respondent  No.3)  and  it  was
\nunanimously  resolved to tender advice to the Governor  of
\nthe  State  to  dissolve  the  Legislative  Assembly.   As
\nagainst  this, there is only one affidavit filed on record
\naffirmed  by  one  Mr.  Jose Philip DSouza,  affirmed  on
\n18.3.2002,  who  had  tendered  is  resignation  from  the
\nCouncil  of  Ministers on 2.3.2002.  Thus, looking to  the
\ndate  of  his  resignation  and the  date  of  filing  the
\naffidavit,  it is not difficult to read as to why he chose
\nto  file  this  affidavit.  Further, if his  Affidavit  is
\nperused,  it  would be clear that he does not dispute  the
\nCabinet Meeting dated 27.2.2002, but asserts that abruptly
\nit  was  informed  that the meeting has been  convened  to
\nrecommend  dissolution of Assembly and some of the Members
\nof  the  Council strongly objected and that there  was  no
\nunanimity  on the issue and that no decision was taken  by
\nthe  Council  of  Ministers  in   the  meeting,  held   on
\n27.2.2002,   to  recommend  dissolution   of   the   State
\nLegislative Assembly.\n<\/p>\n
 92.  It is significant to notice that 13 Ministers
\npresent in the Cabinet Meeting affirmed on oath that there
\nwas  a  meeting of the Cabinet and unanimous decision  was
\ntaken  in  the said meeting and 21 out of Members  of  the
\nLegislative  Assembly  affirmed  on oath to stand  by  the
\ndecision taken by the Council of Ministers to dissolve the
\nLegislative  Assembly, thus looking to the magic figure of
\n21  out of 40, can it be said that the Chief Minister  was
\nnot  enjoying  majority  in the House or  the  Council  of
\nMinisters  were  not enjoying confidence of the  House  or
\nthat the ruling party had no majority in the house or that
\nlooking to the affidavits of all the 13 Ministers who were
\nMembers  of the Council of Ministers, can it be said  that
\nthere  was no meeting of the Council of Ministers or  that
\nno  such resolution was adopted in the said meeting.   The
\nAffidavit  filed  by Mr.  Jose Philip DSouza,  coming  on
\nrecord  after  his  resignation, speaks volume  about  the
\nreasons why he is filing such affidavit on record.  At any
\nrate,  he also does not deny that there was no meeting  at
\nall.  With this material on record, the assertions made by
\nthe  petitioners  that there was no meeting or that  there
\nwas  no  meeting of the Council of Ministers or  that  the
\nadvice  tendered by the Chief Minister was his  unilateral
\nadvice  or the Council of Ministers were not enjoying  the
\nconfidence  of  the House or majority in the  House,  must
\nfail.\n<\/p>\n
 93.   With  the  above  material  on  record,  the
\npicture  is clear that respondent No.3, the Chief Minister
\nwas  enjoying  majority  of the House and the  Council  of
\nMinisters  did  resolve  to recommend dissolution  of  the
\nHouse  to seek popular mandate as the Government was being
\nrun  on fractured mandate.  Now the question is, when such
\na  advice comes to the Governor of the State, what  should
\nbe  the role of the Governor or how the Government  should
\nact  or  what  procedure the Governor should  adopt  while
\nexercising  his  power  or while accepting advice  of  the
\nCouncil of Ministers enjoying majority.\n<\/p>\n
 94.   Factually,  it is brought on record that  on
\nreceipt of the resolution containing advice of the Council
\nof Ministers, the Governor had verified the factual events
\nwhich  had  taken place in the Meeting of the  Council  of
\nMinisters;   deliberations  which took place in  the  said
\nMeeting  through  the  Chief Secretary of  the  State  and
\nappears  to  have  consulted the Advocate General  of  the
\nState before deciding to accept the advice tendered by the
\nCouncil of Ministers.  In this backdrop, what decision the
\nGovernor  should  have  taken,  is not  a  question.   The
\nquestion  is, can it be said that the Governor has faulted
\nin  accepting  the  said aid and advice  tendered  by  the
\nCouncil of Ministers through the Chief Minister ?  In this
\nbehalf,   it   would  be  relevant   to   refer   to   the
\nrecommendations  of the Sarkaria Commission wherein it  is
\nspecifically mentioned that various Governors have adopted
\ndifferent  approaches  in similar situations in regard  to
\ndissolution  of the Legislative Assembly.  However,  where
\nthe  Chief Minister had lost such support, some  Governors
\nrefused  to  dissolve  the  Legislative  Assembly  on  his
\nadvice,  while others in similar situations, accepted  his
\nadvice  and  dissolved  the Assembly.   The  Assembly  was
\ndissolved  in  Kerala (1970) and in Punjab (1971)  on  the
\nadvice  of  the  Chief Minister whose  claim  to  majority
\nsupport  was  doubtful.  However, in more or less  similar
\ncircumstances  in  Punjab  (1967), Uttar  Pradesh  (1968),
\nMadhya  Pradesh  (1969) and Orissa (1971) the  Legislative
\nAssembly was not dissolved.  Attempts were made to install
\nalternative  Ministry.   The  opinion   expressed  by  the
\nSarkaria  Commission  is  that  the advice  of  the  Chief
\nMinister  enjoying  majority  is normally binding  on  the
\nGovernor.   The recommendation of the Sarkaria  Commission
\nin this behalf are as under :\n<\/p>\n
  “4.11.15  The  Council  of  Ministers   may
\nadvice   the  Governor  to   dissolve   the
\nLegislative  Assembly on the ground that it
\nwishes  to  seek a fresh mandate  from  the
\nelectorate.  If the Ministry enjoys a clear
\nmajority in the Assembly, the Governor must
\naccept  the  advice.    However,  when  the
\nadvice  for dissolving the Assembly is made
\nby  a Ministry which has lost or appears to
\nhave  lost  majority support, the  Governor
\nshould adopt the course of action suggested
\nin  paras  4.11.09 to 4.11.13  and  4.11.20
\nabove  as  may be  appropriate.”\n<\/p>\n
 [emphasis
\nsupplied] <\/p>\n
 The aforesaid recommendation, would clearly establish that
\nif  the Ministry enjoys a clear majority in the  Assembly,
\nthe  Governor  must  accept  the   advice  and  the   said
\nrecommendation  further  makes  a recommendation  in  para
\n4.16.14 reading as under :\n<\/p>\n
  “4.16.14 So long as the Council of Ministers
\nenjoys  the  confidence of  the  Legislative
\nAssembly,  the  advice  of  the  Council  of
\nMinisters   in  regard  to   summoning   and
\nproroguing a House of the Legislature and in
\ndissolving the Legislative Assembly, if such
\nadvice  is  not  patently  unconstitutional,
\nshould   be  deemed  as   binding   on   the
\nGovernor.”\n<\/p>\n
 Keeping   in  view  the   aforesaid  recommendations   and
\nconsidering  the  situations  from two  different  angles,
\nnamely  that  the  advice  tendered   by  the  Council  of
\nMinisters  enjoying  clear majority in the  Assembly,  the
\nGovernor  must accept the advice and he has no discretion,
\nthen  in  that  event, this is a case  wherein  the  Chief
\nMinister  was enjoying clear majority, which is borne  out
\nfrom  the  affidavits  filed  on  record  affirmed  by  21
\nindividual  Members  of  the   State  Assembly.   In  this
\nsituation,  can  it be said that any prima facie  case  is
\nmade  out  to establish that the decision of the  Governor
\nwas  arbitrary or malafide, prima facie answer to it would
\nbe obviously, no.\n<\/p>\n
 95.   Considering  the same case from the  another
\nangle that the Governor had a discretion in accepting such
\nadvice,  then can it be said that the Governor faulted  in
\naccepting  the said advice.  On the historical backdrop of
\nexercise  of discretionary powers by the various Governors
\nadopting  different  approaches  in similar  situation  in
\nregard  to the dissolution of the Legislative Assembly, in
\norder to answer this question one has to consider that the
\n“discretion”  is  the  act  or  the  liberty  of  deciding
\naccording  to the principles of justice and ones ideas of
\nwhat  is right and proper under the circumstances, without
\nwilfulness  or  favour,  and,  as  applied  as  to  public
\nfunctionaries,   means  the  power  or  right  of   acting
\nofficially,  according  to  what appears just  and  proper
\nunder  the circumstances.  It must in a legal sense is the
\nresponsible  exercise of official conscience on all  facts
\nof  a particular situation in the light of the purpose for
\nwhich  the  power exists.  The term  “discretion”  imports
\nexercise    of   judgment,    wisdom    and   skill,    as
\ncontradistinguished from unthinking folly, heady violence,
\nand  rash injustice.  The “discretion means the equitable
\ndecision  of  what  is just under the  circumstances.   It
\nmeans  the  liberty  or  power of  acting,  without  other
\ncontrol in ones own judgment.\n<\/p>\n
 96.   Thus, in absence of a hard and fast rule for
\nthe  establishment  of  a clearly defined rule,  the  duty
\ninvolves  the  character of Judgment or  discretion  which
\ncannot  be  controlled by mandamus.  In the wake  of  this
\nmeaning  assigned to the word “discretion” can it be  said
\nthat    the    Governor    has    used   his    discretion
\nunconstitutionally  in  the matter of dissolution  of  the
\nState  Legislative Assembly or the said discretion suffers
\nfrom  unthinking folly, heady violence and rash injustice.
\nCan  it be said that it is capricious or arbitrary  action
\non  the part of the Governor.  The discretion may be,  and
\nis  to  a  very  great  extent  related  by  usage  or  by
\nprinciples   which  the   authorities  or   constitutional
\nfunctionaries  have learned by experience, when applied to
\nthe  great majority of issues, but it is still left to the
\nauthorities to determine whether an issue is exactly alike
\nin  every colour, circumstances and features to those upon
\nwhich the usage or principle is founded or in which it has
\nbeen  applied.   As  already stated  hereinabove,  various
\nGovernors  have  adopted different approaches  in  similar
\nsituations  in  regard to dissolution of  the  Legislative
\nAssembly  and in the backdrop of the fact that the  advice
\nof  a  Chief  Minister enjoying majority  support  in  the
\nAssembly  is normally binding on the Governor, I am of the
\nprima  facie  opinion that the Governor has exercised  his
\ndiscretion  in  harmony  with the  Council  of  Ministers.
\nJudged  from  this  angle, can it be said that  any  prima
\nfacie  case  is  made out by the petitioners  to  exercise
\npowers  of  review.  Can it be said that any case is  made
\nout  by them so as to say that onus of proof stood shifted
\non  the  respondents to justify their action, prima  facie
\nanswer to it would be obviously, no.\n<\/p>\n
 97.  At this juncture, one more aspect which needs
\nto  be taken into account is that the WP No.84\/2002 itself
\nbrings  on record the earlier defections which have  taken
\nplace  in the recent past on the political horizon of  the
\nState,   which  is  clear  from   the  pleadings  of   the
\npetitioners themselves.  In this backdrop, if the Governor
\nfelt    that  having  regard  to   the   conditions   then
\nprevailing  in  the  State, he should accept the  aid  and
\nadvice  tendered  by the Council of Ministers  and  should
\nexercise  his  discretion in harmony with his  Council  of
\nMinister  to prevent further defections, horse trading  or
\nto  give  an  opportunity to the State to  have  a  stable
\nGovernment in this backdrop, can it be said that any prima
\nfacie case is made out to say that onus got shifted on the
\nrespondents  to justify their action.  I think no.  On the
\nabove  canvas  of facts and circumstances, can it be  said
\nthat  the  decision of the Governor was tainted with  mala
\nfides,  so  as  to call upon the Governor to  justify  his
\nacts.   I  think  no.   A large  number  of  decisions  of
\ndifferent  Courts have been relied on by the  petitioners,
\nbut  none of those Judgments are necessary or relevant for
\nthe present.  All those Judgments would have been relevant
\nonly for deciding the issue on merits, had the petitioners
\ncrossed the first hurdle and would have been successful in
\nshifting onus on the respondents.\n<\/p>\n
 CONSIDERATION OF SUBSEQUENT EVENTS :\n<\/p>\n
 98.   I examined the facts of the present cases on
\ntheir  own merits and have reached to the conclusion  that
\nthe petitioners failed to make out any case even for prima
\nfacie  enquiry.   I  am  also  of  the  opinion  that  the
\nsubsequent  events are such in nature and dimensions  that
\nthe   case  propounded  by   the  petitioners  have   been
\ncompletely  overshadowed  and eclipsed by the said  events
\nand the petitions are liable to be dismissed on this count
\nalso.\n<\/p>\n
 99.   The  respondents   submitted  that  whenever
\nsubsequent  events of facts and law which have bearing  on
\nthe  entitlement  of the parties to reliefs or on  aspects
\nwhich  have  bearing  on the petitions, the Court  is  not
\nprecluded  in taking cautious cognizance of the subsequent
\nchanges of fact and law to mould the relief.\n<\/p>\n
 100.   The  petitioners strongly opposed the  said
\nmove to introduce these subsequent events on record and to
\npress them into service on the ground that the third Judge
\nis not expected to take fresh material on record which was
\nnot  before  the  Division Bench when the  petitions  were
\nheard  and  respective judgments were delivered  in  these
\nWrit Petitions.  The submissions advanced on behalf of the
\npetitioners  in this behalf need not detain me in view  of
\nthe  fact that the petitioners themselves have moved Misc.
\nCivil  Application  No.371\/2002 seeking production of  the
\nmaterial  allegedly  considered  by   the  Governor  while
\ndissolving  the  Assembly.   The objection raised  by  the
\npetitioners  for considering subsequent events is  running
\ncounter  to the conduct of the petitioners themselves.  If
\nthe  petitioners  were of the view that no fresh  material
\ncould  be  taken  on  record and  were  serious  in  their
\nsubmissions,  then they themselves would not have moved an
\napplication seeking production of evidence which is not on
\nrecord.\n<\/p>\n
 FINDINGS ON SUBSEQUENT EVENTS :\n<\/p>\n
 101.   Now  turning  to   the  rival   submissions
\nadvanced,  it  is needless to mention that the law on  the
\nsubject  is well settled.  The parties to the  proceedings
\ncannot  be  prevented from bringing on  record  subsequent
\nevents having bearing on the issues.  In Lekh Raj v.  Muni
\nLal  and others<\/a>, (2001) 2 S.C.C., 762, The Apex Court  has
\nobserved thus :-\n<\/p>\n
 ” 11.  The  law  on the  subject is
\nalso  settled.  In case subsequent  event
\nor  fact having bearing on the issues  or
\nrelief in a suit or proceeding, which any
\nparty seeks to bring on record, the court
\nshould  not shut its door.  All laws  and
\nprocedures   including   functioning   of
\ncourts  are all in aid to confer  justice
\non all who knock its door.  Courts should
\ninterpret  the  law not in derogation  of
\njustice but in its aid.  Thus bringing on
\nrecord   subsequent  event,    which   is
\nrelevant,  should  be   permitted  to  be
\nbrought  on record to render justice to a
\nparty.   But the Court in doing so should
\nbe  cautious  not  to   permit  it  in  a
\nroutine.   It should refuse where a party
\nis  doing  so to delay  the  proceedings,
\nharass  the  other party or doing so  for
\nany  other  ulterior motive.  The  Courts
\neven  before  admitting  should  examine,
\nwhether  the alleged subsequent event has
\nany   material  bearing  on  the   issues
\ninvolved  and  which   would   materially
\naffect   the  result.     In   Pasupuleti
\nVenkateshwarlu   v.   Motor   &   General
\nTraders<\/a>  this Court has very clearly held
\nto  the  same effect:  (SCC pp.   772-73,
\npara 4).\n<\/p>\n
 ”  It  is basic to  our  processual
\njurisprudence  that  the right to  relief
\nmust  be judged to exist as on the date a
\nsuitor  institutes the legal  proceeding.
\nEqually  clear  is   the  principle  that
\nprocedure  is  the handmaid and  not  the
\nmistress  of the judicial process.  If  a
\nfact, after the lis has come to Court and
\nhas  a fundamental impact on the right to
\nrelief  or the manner of moulding it,  is
\nbrought  diligently to the notice of  the
\nTribunal,  it  cannot blink at it  or  be
\nblind  to events which stultify or render
\ninept   the  decretal   remedy.    Equity
\njustifies bending the rules of procedure,
\nwhere  no specific provision or fair play
\nis  violated,  with  a  view  to  promote
\nsubstantial justice – subject, of course,
\nto  the  absence  of  other  disentitling
\nfactors  or just circumstances.  Nor  can
\nwe  contemplate  any limitation  on  this
\npower  to  take note of updated facts  to
\nconfine  it  to the trial court.  If  the
\nlitigation  pends,  the   power   exists,
\nabsent   other    special   circumstances
\nrepelling resort to that course in law or
\njustice.   Rulings  on   this  point  are
\nlegion,    even   as    situations    for
\napplications  of this equitable rule  are
\nmyriad.   We affirm the proposition  that
\nfor making the right or remedy claimed by
\nthe  party  just and meaningful  as  also
\nlegally  and factually in accord with the
\ncurrent  realities, the court can, and in
\nmany  cases must take cautious cognizance
\nof  events and developments subsequent to
\nthe  institution  of proceeding  provided
\nthe  rules of fairness to both sides  are
\nscrupulously obeyed.  ”\n<\/p>\n
 12.   This Court in Ramesh Kumar v.\n<\/p>\n
Kesho  Ram held:  (SCC pp.  626-27,  para\n<\/p>\n
6) <\/p>\n
 “6.  The normal rule is that in any
\nlitigation  the rights and obligations of
\nthe  parties are adjudicated upon as they
\nobtain  at  the commencement of the  lis.
\nBut  this  is  subject to  an  exception.\n<\/p>\n
Wherever subsequent events of fact or law
\nwhich  have  a  material bearing  on  the
\nentitlement  of the parties to relief  or
\non  aspects which bear on the moulding of
\nthe  relief  occur,  the   court  is  not
\nprecluded   from  taking    a   cautious
\ncognizance  of the subsequent changes of
\nfact  and  law to mould the  relief.   In
\nLachmeshwar Prasad Shukul v.  Keshwar Lal
\nChaudhuri Chief Justice Sir Maurice Gwyer
\nobserved:  (AIR p.6):\n<\/p>\n
But  with  regard to the  question
\nwhether  the  court is entitled  to  take
\ninto  account  legislative changes  since
\nthe  decision  under appeal was given,  I
\ndesire to point out that the rule adopted
\nby the Supreme Court of the United States
\nis  the  same  as   that  which  I  think
\ncommends  itself to all three members  of
\nthis  Court.   In Patterson v.  State  of
\nAlabama  Hughes,  C.J., said:  ” We  have
\nfrequently  held that in the exercise  of
\nour  appellate jurisdiction we have power
\nnot only to correct error in the judgment
\nunder review but to make such disposition
\nof  the case as justice requires.  And in
\ndetermining  what  justice does  require,
\nthe  Court  is  bound   to  consider  any
\nchange,  either in fact or in law,  which
\nhas  supervened  since the  judgment  was
\nentered.   ” ”\n<\/p>\n
 Keeping  in view the above observations, it is clear  that
\nsubsequent  events having great impact on these  petitions
\ncan be taken into consideration.\n<\/p>\n
102.   Taking into account the aforesaid subsequent events
\nleading  to  subsequent elections to the Assembly  of  the
\nState of Goa, consequent upon Notification dated 2.6.02, a
\nnew  Legislative  Assembly  for  the   State  came  to  be
\nconstituted  and that it has started functioning with  its
\nfirst  meeting.   There was no challenge to the  elections
\nnotified  on  6.5.02  nor is there any  challenge  to  the
\nNotification   dated  11.5.02  issued   by  the   Election
\nCommission  of  India  whereby  fresh  elections  for  the
\nconstitution of new Assembly were directed.  Even there is
\nno challenge to the newly constituted Legislative Assembly
\nof  the  State.  None of the newly elected members of  the
\nLegislative Assembly are parties to these petitions.  None
\nof  them  are  before  this Court.   The  petitioners  are
\nseeking  a relief of declaration as prayed, if granted, it
\nwill  have  the effect of reviving the dissolved  Assembly
\nand  unseating  all  the  newly  elected  members  of  the
\nLegislative  Assembly without there being any challenge to
\ntheir election or to the newly constituted Assembly of the
\nState,  that too without affording them any opportunity of
\nhearing.   The question is can such a relief be granted in
\nthe  present petitions resurrecting the dissolved Assembly
\nand  thereby  putting life in the dissolved  Assembly  and
\nthereby taking away the vested rights of the newly elected
\nmembers  of  the Legislative Assembly ?  To my  mind,  the
\nanswer must be in the negative.\n<\/p>\n
 103.  On the above factual matrix the question with regard
\nto  the  validity  of   the  proclamation  dissolving  the
\nAssembly  is no longer a live issue.  The issues sought to
\nbe  raised  in the petitions have become academic  due  to
\nsubsequent  elections  to the Assembly giving birth  to  a
\nnewly  constituted Legislative Assembly of the State.   In
\nabsence  of  any  challenge to fresh elections or  to  the
\nnewly  constituted  Assembly it would be impermissible  to
\nissue  any  such declaration or directions to  revive  the
\ndissolved  Assembly  and to reinduct the  erstwhile  State
\nGovernment into the office.  As a matter of fact, in these
\npetitions,  in  my  view, the petitioners  ought  to  have
\nchallenged the Notification dated 11.05.2002 issued by the
\nElection   Commissioner   of   India,  declaring   general
\nelections  for constituting the new Assembly of the  State
\nof  Goa, which were scheduled to be held on 30th May, 2002
\nso  as to keep the issue alive.  In Pearelal v.  Union  of
\nIndia,   no relief was granted by the  Apex
\nCourt  as  orders  issued subsequent to  the  order  under
\nchallenge,  were not challenged by amending the  petition.
\nIt  was, thus, held that the original petition had  become
\ninfructuous.\n<\/p>\n
 104.   The fresh elections have taken place during
\nthe pendency of these petitions.  Legislative Assembly and
\nMinistries  have been constituted.  The issue involved  in
\nthe petitions has become academic.  Thus in absence of any
\nchallenge  to  the Notification directing fresh  elections
\nand  further  challenge  to   the  constitution  of  newly
\nconstituted  Assembly,  it will not be possible  for  this
\nCourt  to exercise any power under Article 226 to put  the
\nclock back.\n<\/p>\n
 105.    The  writ  jurisdiction   is   meant   for
\nextraordinary  relief  and  limited by conditions,  it  is
\nintended  to be issued for a definite and fruitful purpose
\nfor  doing substantial justice.  It cannot be issued for a
\nmere  declaration of right.  The Supreme Court in the case
\nof Suresh v.  Vasant,<\/a>  held that while
\ngranting  relief  High Court should keep in view that  the
\nissue  of  writ  would  not   be  futile.   In   Balmadies
\nPlantations  v.   State of Tamil Nadu,<\/a> ,
\nwherein the question of validity of a notice under the Act
\nwhich  had not been brought into force was not examined as
\nthe  matter was purely academic in nature.  In the case of
\nM.   Ismail Faruqui v.  Union of India, ,  the  Apex  Court   while  dealing  with  the
\nmaintainability  of  the  reference   refused  to   answer
\nReference and returned the same.  The observations made in
\nthis behalf are reproduced hereinbelow :
\n  “….   the  Reference   made  under  Art.\n<\/p>\n
143(1)    becomes       superfluous    and
\nunnecessary.   For  this   reason,  it  is
\nunnecessary  for us to examine the  merits
\nof   the   submissions     made   on   the
\nmaintainability  of  this Reference.   We,
\naccordingly,  very respectfully decline to
\nanswer the Reference and return the same.\n<\/p>\n
 106.  As already set out hereinabove, no challenge
\nwas  set  up  by amending petitions  to  the  Notification
\nissued  by  the  Election   Commission  of  India  holding
\nelections  to  the General Assembly.  Elections have  been
\nheld  to  the State Assembly.  New Assembly, by virtue  of
\nNotification  dated 2.06.2002 has been constituted.  Newly
\nconstituted  Assembly  is  not   under  challenge.   Newly
\nelected  members  of  the  Legislative  Assembly  are  not
\nparties  to the petitions.  Under these circumstances, one
\nhas  to  reach to the conclusion that the issue is  not  a
\nlive issue and has become academic.  The same approach was
\nadopted  by  the Judges of the Apex Court in the  case  of
\nS.R.   Bommai (supra) though the majority view was that it
\nwould be open to this Court to restore the status quo ante
\nto  the  issuance  of  the  proclamation  to  restore  the
\nLegislative  Assembly  and Ministry provided the issue  is
\nkept burning.  As a matter of fact, the State of Rajasthan
\nV\/s.   Union of India,  holds  that
\ninspite  of  disapproval or non-approval does not  survive
\nthe  Legislative  Assembly which may have  been  dissolved
\nbut,  this  aspect has not been dealt with,  specially  in
\nview of the law declared by the Supreme Court that no such
\ndissolution  is  permissible before approval off both  the
\nHouses.  However, in these petitions, dissolution being in
\nexercise  of  powers  under  Article  174(2)(b)  different
\nconsideration would prevail.  At any rate because of other
\nvital   defects   in  the   petitions,  as   pointed   out
\nhereinabove,  it  will  be  futile to issue  any  writ  in
\nexercise  of  writ  jurisdiction of this Court.   Thus  it
\nfollows  as  a  fortiori  the  validity  of  the  impugned
\ndissolution  cannot  be examined in these petitions.   The
\npetitions must fail.\n<\/p>\n
 107.    The  petitioners   having  contested   the
\nelections  to  the  newly  constituted  State  Legislative
\nAssembly,   have  caused  substantial   damage  to   their
\npetitions.  In my view, in view of the acquiescence on the
\npart  of  the petitioners by contesting  fresh  elections,
\nthese  writ  petitions  filed by the petitioners  are now
\nrendered  infructuous and it would be futile to issue  any
\nwrit  at  this  stage.   The Apex Court  in  the  case  of
\nRajendra  Prasad  Yadav and ors.  v.  State of  M.P.   and
\nors.,  , adopted the similar approach  and
\nrefused to issue futile writ.  All the petitioners are now
\nelected  members  to  the  newly  constituted  Legislative
\nAssembly.   They  are enjoying all the privileges in  that
\ncapacity.   They  cannot be allowed to blow hot and  cold.
\nIn this view of the matter, as a matter of propriety, they
\nshould  not  have  proceeded to prosecute  and\/or  pursued
\nthese  petitions any more being responsible Members of the
\nlaw  making fraternity after having become members of  the
\nnewly  constituted  Legislative Assembly and  should  have
\nhelped this Court by gracefully withdrawing the petitions,
\nso as to save valuable and precious judicial time.  But it
\nappears  that  the petitioners prosecuted these  petitions
\nonly  to  gain political mileage.  Practice of  using  the
\njudicial  forums or Courts for political benefits needs to
\nbe  arrested.   In this view of the matter, the  petitions
\nneed  to be dismissed with heavy costs.  In the  aforesaid
\npremises,  I  agree with the order passed by  my  Brother,
\nHardas, J.  that these petitions deserve to be dismissed.\n<\/p>\n
 108.  I, therefore, make the following Order :
\n  In  the  result, both the petitions are  dismissed
\nwith costs quantified in the sum of Rs.25,000\/- to be paid
\nby  each  petitioner.  Rule stands discharged in both  the
\npetitions.\n<\/p>\n
 Before  parting with the case, I wish to place  my
\nappreciation  on record for the assistance rendered to  me
\nby  all  the  learned Counsel appearing on behalf  of  the
\nrespective parties to the petitions.\n<\/p>\n
 In  accordance  with the Clause 36 of the  Letters
\nPatent,  read  with Rule 15 of Chapter XVII of the  Bombay
\nHigh  Court Appellate Side Rules 1960, these petitions  be
\nnow  placed before the Division Bench for pronouncement of
\nfinal Judgment or Order disposing of these petitions.\n<\/p>\n
V.C. Daga, J.\n<\/p>\n
 109.    Heard   rival   contentions.   Shri   Y.V.
\nNadkarni,  learned counsel appearing for the petitioner in
\nWrit  Petition  No.84 of 2002, submitted that this  matter
\nshould  be heard by this Division Bench after the  receipt
\nof the certified copy of the judgment by the petitioner.\n<\/p>\n
 110.   It  is  needless to mention that  when  the
\nJudgment  was  delivered  by one of us as  a  Third  Judge
\n(Daga,  J.),  the  Judgment was ready  and  available  for
\nperusal of the parties.  In this view of the matter, we do
\nnot think that the request made is reasonable.  Hence, the
\nrequest is rejected.\n<\/p>\n
 111.   Shri J.  DSouza, learned counsel appearing
\nfor  the  petitioners  in  Writ Petition  No.88  of  2002,
\nreported  no instructions.  The statement made by him  and
\ninformation passed on to this Court is taken note of.\n<\/p>\n
 112.   In view of the majority view, the petitions
\nare  dismissed.  Rule in both petitions stands discharged.
\nEach  petitioner shall bear the costs of the  respondents,
\nseparately  quantified  in the sum of Rs.25,000\/-  (Rupees
\ntwenty five thousand only) per petitioner.\n<\/p>\n
V.C. Daga, J.\n<\/p>\n
P.V.  Hardas, J.\n<\/p>\n
Hardas, J:\n<\/p>\n
 113.  In addition to our above order, I propose to
\nplace on record that when these petitions were heard by me
\nwith Learned Brother Aguiar J., certain subsequent events,
\nwhich  have taken place such as holding of the  elections,
\ndeclaration   of  the  results   thereof  and   consequent
\nconstitution  of the new Legislative Assembly of the State
\nwere  not the subject-matter of consideration as these are
\nsubsequent events.\n<\/p>\n
 114.  In view of the subsequent events, I herewith
\nendorse  the views of my Learned Brother Daga J., that the
\nissue  is  no  longer  alive and  petitions  are  rendered
\ninfructuous  in  view  of  the subsequent  events  and  no
\nfruitful  purpose  would  be served by  issuing  writs  as
\nprayed  for  in  the petitions.  The  petitions  are  thus
\nliable  to be dismissed on this count also.   Accordingly,
\nthese petitions are dismissed as per the order recorded in
\nthe opening part of this Order.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Shri Luizinho Joaquim Faleiro vs The State Of Goa, Through Its Chief … on 1 August, 2002 Equivalent citations: 2003 (2) MhLj 334 Author: V Daga Bench: V Daga JUDGMENT V.C. Daga, J. 1. These two Writ Petitions under Article 226 of the Constitution of India have been referred to me in […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-66014","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nShri Luizinho Joaquim Faleiro vs The State Of Goa, Through Its Chief ... on 1 August, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shri-luizinho-joaquim-faleiro-vs-the-state-of-goa-through-its-chief-on-1-august-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shri Luizinho Joaquim Faleiro vs The State Of Goa, Through Its Chief ... on 1 August, 2002 - 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